Troops Discharged Over COVID-19 Vaccine Refusal Sue US Government for Billions in Lost Wages

Military members are seeking backpay and restoration of benefits.

A Navy member prepares a COVID-19 vaccine dose at a vaccination site in a file image. DOD Photo by Navy Petty Officer 1st Class Carlos M. Vazquez II via The Epoch Times

The U.S. military must make whole former military members who were kicked out for refusing to receive a COVID-19 vaccine, according to a trio of federal lawsuits.

The former military members are seeking backpay, damages, and other compensation.

Nicholas Bassen, an Army sergeant who was discharged in 2022 for not getting a vaccine, wants compensation of at least $120,000.

The suits, filed in recent months, argue that when Congress compelled the U.S. Department of Defense (DoD) to rescind its COVID-19 vaccine mandate, lawmakers carefully chose their wording.

“Congress expressly chose the term ’rescind‘, rather than more customary language such as ’repeal’, ‘amend’, or ‘clarify’, to direct the DoD and the courts that the rescission should be applied retroactively,” one states.

To support their argument, lawyers pointed to U.S. Defense Secretary Lloyd Austin’s Jan. 10 memorandum, in which the retired general rescinded the mandate and ordered military leaders to remove adverse actions pertaining to vaccine refusal from the records of members still serving.

Mr. Austin also said that former members could lodge petitions to request corrections to their records.

“Secretary Austin acknowledged the Congressional directive to apply the Rescission retroactively by, among other things, committing to correct all of the paperwork and adverse personnel actions resulting from non-compliance with the now voided mandate and orders issued pursuant to it,” one of the suits states.

“We think there’s some pretty strong precedent in in our favor, because when Congress repealed ‘Don’t Ask, Don’t Tell’ they use the word ’repeal‘. When they did this, they use the word ’rescind’,” Dale Saran, one of the attorneys representing the former members, told The Epoch Times in an email.

“Everybody should be made whole again,” Mr. Saran added later. “They should be right back in the position they were before.”

Mr. Saran estimated that, if the suits are successful, then billions of dollars would go to former members.

He noted that the money was already appropriated by Congress for pay and other compensation before the military discharged more than 8,000 personnel for refusing to receive a vaccine.

Tens of thousands of National Guard personnel, meanwhile, were denied pay for being deemed out of compliance with the mandate.

All three class-action suits were filed in the U.S. Court of Federal Claims.

Former members interested in joining the suits can go to militarybackpay.com.

U.S. Army soldiers prepare Pfizer COVID-19 vaccines at the Miami Dade College North Campus in North Miami on March 9, 2021. Joe Raedle/Getty Images

Government Responds

Military leaders have resisted calls to award backpay to people affected by the mandate, and in court filings the government urged judges to dismiss the suits.

The National Defense Authorization Act (NDAA) of 2023, which featured the language on rescinding the mandate, does not mandate money being awarded to affected members and former members, government lawyers told the courts.

In a section of the act, Congress said that “the secretary of defense shall rescind the mandate that members of the Armed Forces be vaccinated against COVID-19.”

“Nothing in the language of section 525 can be interpreted as mandating compensation retroactively for service members affected by the vaccination requirement retrospectively or prospectively,” the lawyers said in one filing. “Indeed, the language does not contemplate, much less mandate, any compensatory rights for service members.”

Even if plaintiffs were correct, Congress did not intend to award backpay, the lawyers said, referencing how a proposed amendment that would have clearly awarded compensation to discharged members was voted down.

“Such an amendment would have been unnecessary if the word ’rescind' already required the military to provide the monetary relief the plaintiffs seek,” they said.

Judges in the cases will rule in the future on the government’s motions to dismiss. If successful, appeals could be lodged. If judges rule against the government, then the cases will advance.

In a reply to the government, lawyers for the former members said that the defense act was a “money mandating” law, pointing to court decisions finding provisions such as “Don’t Ask, Don’t Tell” were money-mandating provisions.

“To the extent Congress left any discretion, the 2023 NDAA, in conjunction with the 2023 Appropriations Act, the Military Pay Act, and other federal laws and regulations identified in the complaint, are money-mandating because they provide clear standards for payment; state the precise amounts for payment; and set forth eligibility conditions for such payments,” they said.

Other Restoration

In addition to awarding backpay, the courts should order the military to correct the records of those discharged, according to the suits.

Lawyers for the former members also want the military ordered to restore retirement benefits and points, which are earned during duty.

Efforts to take money from members, such as the recoupment of enlistment bonuses, should also stop, the lawyers said.

“We’ve got clients who are getting debt collectors coming after them,” Mr. Saran said. “For example, say you are a guy who did a four-year hitch, and you got a signing bonus to reenlist, and you’re two-and-a-half years in when the mandate comes down. Then they kick you out and they go, ‘oh, you owe us that $25,000 signing bonus, too.’ So we got guys in collections.”

Mr. Bassen, for example, has been asked by the military to repay his signing bonus while a plaintiff in another one of the suits, Georgia Army Guard Sgt. First Class Brian Taylor, was forced to pay health insurance premiums after being barred from drilling and denied compensation.

Mr. Taylor, lawyers said, “seeks a return of the money illegally extracted from him by the U.S. government in [insurance] premiums, for the indebtedness the government created by its own unconstitutional acts and orders.”