The commander of the Arleigh-Burke-controlled missile destroyer in a legal battle with the Navy to deny the COVID-19 vaccine on religious grounds has been temporarily assigned to land service, his lawyers say.
The service wants to remove the officer from command of the East Coast warship because of his stance on the vaccine, but was blocked by a federal judge in Florida. Navy officials have testified that the ship is “out of service” and out of service with the responsible commander.
The relocation follows one March 25 Judgment of the Supreme Court in a separate lawsuit against the Department of Defense involving members of the Navy’s special warfare that allows the military to place unvaccinated personnel in non-operational roles without the intervention of a federal judge. However, the Navy cannot reject sailors who refuse vaccination and apply for religious dispensation.
The relocation of the Commander-in-Chief to land service allows the Navy to dispatch the unnamed destroyer, according to a statement from Richard Mast, an attorney with Liberty Counsel representing the Commander-in-Chief.
“On Monday, April 11, instead of getting on board his ship, the fleet commander was” temporarily relocated “for 60 days under a new fleet policy that prohibits unvaccinated personnel from getting started on the fleet’s ships,” according to Mast’s statement. .
On Tuesday, the Navy referred questions from USNI News about the commander’s status to the Justice Department. A DoJ spokesman declined to comment for USNI News.
The commander was told by his commodore on April 8 that he would be temporarily reassigned to land service for 60 days, according to the statement.
Although the commodore is not named, Captain Frank Brandon, commodore of Destroyer Squadron 26, has previously made two statements in the case indicating that he is the commodore to whom the commander reports.
The relocation is retaliation, said Mat Staver, president of Liberty Counsel. Under the interim protection order issued by Federal Judge Steven Merryday, the Navy can take no adverse steps against the Commander-in-Chief. Merryday also gave an order to the commander to testify anonymously.
The Navy argued in the case that the Supreme Court ruling now allows them to reassign the commander-in-chief, while Liberty Counsel argued that the protective order is narrower than the Supreme Court ruling and therefore continues to protect against any reassignment, USNI News reported earlier.
“The order is still that the Navy can not take retaliatory action based on vaccination status,” Staver said in a text message to USNI News. “There is no legitimate reason to remove anyone from command or duty solely because of the person’s vaccination status. Every day, as COVID declines, actions taken by the military against members of the service based on vaccination status become more absurd and illegal.”
Staver told USNI News that his Justice Department plans to take further legal action in connection with the relocation, but no timeline has been set.
It is not clear whether vaccination status was the Navy’s sole consideration when relocating the commander.
The Navy searched remove the commander from the East Coast-based destroyer after losing confidence in his ability to lead, Brandon wrote in his statements submitted in the case.
The loss of trust came after the commander-in-chief did not follow a lawful order after his request for religious exemption was denied, according to Brandon’s statement.
“A commander who cannot comply with military orders has forever lost the ability to instill a culture of good order and discipline in their crew,” according to the statement. “This will inevitably lead to the breakdown of basic principles of training, safety and seamanship and can have tragic consequences at any time, but especially when the vessel is en route to sea.”
Brandon wrote in another statement that he also lost confidence in the commander-in-chief after failing to be tested for COVID-19 immediately after showing symptoms and for not informing Brandon about leaving the area.
In the statement, Brandon said the commander volunteered to work for two days despite having COVID-19 symptoms and not being tested. Brandon sent the commander a letter of instruction in which he noted the concerns and included corrective actions.
The commander also asked for leave in early February 2022, which he told Brandon was to spend time with the family, according to the commodore’s statement, dated February 9, 2022.
Brandon learned, however, that the commander-in-chief left Virginia to testify in Tampa, Fla., For his trial.
“Based on the fact and the three options Plaintiff Navy Commander had to notify me that he was leaving the area, I believe Plaintiff Navy Commander deliberately misled me,” Brandon wrote in the statement. “This is the sole reason to remove the command. If I can not trust the commander of a guided missile destroyer to honestly assess me about his whereabouts, I can not trust him with the command of the ship or her crew.”
Brandon also wrote that because of where the commander flew, he would have to undergo a five-day movement restriction. The commander did not fill out the correct risk assessment paper or discuss a plan with his chief officer for what would happen to the ship, which is in the ground phase, during that time, according to Brandon’s statements.
“In light of the above, I do not trust the plaintiff’s naval commander for our sailors’ lives,” Brandon wrote in his second statement. “In my professional judgment, I can not leave him in command of a Navy warship, regardless of his vaccination status or religious exemption request.”
The commander testified again in his case on March 10th. He testified that he received a summons to appear in court and that he went through the appropriate steps to obtain leave, according to a hearing transcript.
During that hearing, the commander-in-chief said he informed his department heads, executive officer and commander-in-chief that he would be away for a week, out of the area in February. He also told his CEO he would go to Tampa for legal issues.
In his statement, Mast writes that it is a new policy that prevents unvaccinated seafarers from getting started. However, this is not a new policy, but one set out in NAVADMIN 256/21, which was published in November 2021.
“Fleet service members who have not been vaccinated, regardless of dispensation status, may be temporarily reassigned with the consent of the first flag officer in the administrative chain of command based on operational readiness and mission requirements,” according to NAVADMIN.
The Navy previously said that with the exception of the vaccine, they could have their positions restricted due to being unprotected against COVID-19, USNI News has previously reported.