FY2022 NDAA: COVID-19 Vaccination-related Provisions

FY2022 NDAA: COVID-19 Vaccination-related Provisions

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INSIGHTi

FY2022 NDAA: COVID-19 Vaccination-related
Provisions
January 24, 2022
Background
On August 19, 2021, the Secretary of Defense (SECDEF) issued a memorandum directing the Secretaries
of the Military Departments (MILDEPs) to “immediately begin full vaccination of all members of the
Armed Forces under DoD authority on active duty or in the Ready Reserve, including the National Guard,
who are not fully vaccinated against COVID-19.” Shortly after, each MILDEP issued directives to
establish the vaccination requirement, establish deadlines, clarify the process for requesting an exemption,
and describe the procedures for addressing noncompliance. Since implementation of these directives,
some states and servicemembers have filed lawsuits challenging the vaccination mandate or the
MILDEPs’ exemption process. As of January 19, 2022, DOD reported that 1.6 million servicemembers
were fully vaccinated, which is approximately 75% of the total force (active and reserve components).
The MILDEPs also continue to review a number of requests submitted for an administrative, religious, or
medical exemption to the vaccination mandate.
The Fiscal Year (FY) 2021 National Defense Authorization Act (NDAA; P.L. 116-283) included a number
of COVID-19-related provisions focused on reviewing DOD’s pandemic preparedness, providing health
benefits for certain National Guard members supporting the domestic response, and establishing a registry
of Military Health System beneficiaries diagnosed with COVID-19.
Table 1 lists the proposed and enacted COVID-19 vaccination-related provisions included in the FY2022
NDAA (P.L. 117-81).
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Table 1. FY2022 NDAA Legislative Proposals
Senate Armed Services
House-passed H.R. 4350
Committee-Reported S. 2792
Enacted Legislation (P.L. 117-81)
Section 716 would have amended
No related provisions.
Section 736 adopts the House
Chapter 55 of Title 10, U.S. Code to
provision with an amendment that
include a new section that prohibits
allows only an “honorable” discharge
the Secretary of a MILDEP from issuing
or “general discharge under honorable
a discharge characterization other than
conditions” to be issued for
“honorable” to servicemembers
servicemembers separated as a result
separated as a result of noncompliance
of noncompliance with the military
with the military COVID-19
vaccination mandate. The prohibition
vaccination mandate.
applies to discharges from August 24,
2021, through December 27, 2023.
Section 717 would have amended 10
Section 716 adopts the House
U.S.C. §1110 to establish a system, no
provision with an amendment that
later than January 1, 2023, to track and
expands the tracking and recording
record vaccine administration
requirement for vaccines and
information, vaccine adverse reactions,
investigational new drugs.
and servicemember refusals.
Section 720 would have required the
Section 720 adopts the House
SECDEF to establish uniform COVID-
provision with an amendment that
19 vaccination exemption procedures
removes previous COVID-19 infection
for servicemembers (i.e.,
as a component of the required
administrative, medical, or religious
uniform procedures.
reasons; or from previous COVID-19
infection).
Section 750 would have required the
Not adopted.
SECDEF to conduct an anonymous
survey to determine the effects of the
military COVID-19 vaccination
mandate on recruitment and
reenlistment. The results of the survey
would be submitted to Congress and
made publicly-available.
Source: CRS analysis of legislation.
Discussion
Military Vaccination Mandate Compliance
MILDEP policies authorize a range of actions (e.g., administrative discipline, nonjudicial punishment,
court-martial) that a commanding officer may take against servicemembers who violate general orders,
military regulations, or punitive articles under the Uniform Code of Military Justice. In December 2021,
the Air Force was the first military service to administratively discharge certain servicemembers for
noncompliance with the COVID-19 vaccination mandate. Section 736 of the enacted bill adopts House
Section 716, which limits the military departments to issuing a service characterization of “honorable
discharge” or “general discharge under honorable conditions” to servicemembers administratively
discharged for noncompliance with the COVID-19 vaccination mandate. This limitation is retroactive to
August 24, 2021, and remains in effect for two years after enactment of the FY2022 NDAA (i.e., until
December 27, 2023).

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The SECDEF’s August 2021 memorandum authorized each MILDEP to use new or “existing policies and
procedures” to implement the vaccine mandate. This memorandum did not include a requirement for
identical timelines, process requirements, or exemption standards across the MILDEPs. Section 720 of the
enacted bill, which adopts House Section 720, requires the SECDEF to establish uniform review
standards for administrative, religious, or medical requests for exemption from the COVID-19
vaccination mandate. In the Joint Explanatory Statement accompanying the FY2022 NDAA, the
conferees stated that they expect DOD, in establishing uniform standards for medical exemptions, to
“review the scientific literature to determine, to the extent possible, whether a previous COVID-19
infection may induce sustained antibody protection (natural immunity) against SARS-CoV-2, thereby
potentially eliminating a requirement for a vaccine.”
House Section 750 would have required the SECDEF to conduct an anonymous survey to determine if the
military vaccination mandate encouraged, discouraged, or had other effects on servicemember
recruitment or retention. Though the provision was not adopted, the Joint Explanatory Statement stated
that the conferees “encourage the Department of Defense to consider an analysis of existing data related
to the effect of COVID-19 on recruitment and retention efforts in Armed Forces.”
Vaccination Records
Each MILDEP maintains a medical readiness tracking system that generally includes data on
servicemember vaccinations and other health status information. Section 716 of the enacted bill adopts
House Section 717, which amends 10 U.S.C. §1110 to require the establishment of a record system, no
later than January 1, 2023, that tracks and documents certain servicemember vaccination information. The
provision requires the SECDEF to consult with the Defense Health Agency and coordinate with the
MILDEPs to establish a record system that documents DOD-administered servicemember vaccinations;
adverse reactions to such vaccinations; and, refusals to vaccines or drugs that are licensed, authorized, or
deemed “investigational” by the U.S. Food and Drug Administration. The provision requires a report to
the Armed Services Committees, no later than 180 days after enactment, on the status of establishing the
record system.
For more on military vaccinations, see CRS In Focus IF11764, U.S. Agricultural Aid in Response to
COVID-19, and CRS In Focus IF11816, Defense Health Primer: Military Vaccinations.

Author Information

Bryce H. P. Mendez

Analyst in Defense Health Care Policy

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