The Old Guard: Regimental and Battalion Command Teams Accused of Coercion and Unlawful Command Influence

Allegations of command coercion surfaced last week when US Army WTF Moments posted a message that was sent out to Soldiers in ‘The Old Guard’ (3rd US Infantry Regiment/TOG) regarding their approval to live off post and having that privilege revoked if they didn’t “volunteer” to get the vaccine.

Currently, the DOD has issued a directive that all services are to allow service members the option of whether they want to take the vaccine or not, while also dictating that commands will not make any attempt to force personnel to receive it.  Below are excerpts from that guidance specifically listing the voluntary nature of the vaccine. Of note, this guidance is issued to the commanders of the combatant commands…geographic areas all SMs fall under. A violation of this guidance, unless specifically changed by policy or Presidential waiver, is a violation of Article 92 UCMJ.

In addition, there is guidance set forth in the “Department of Defense (DoD) Coronavirus Disease 2019 (COVID-19) Vaccination Program Implementation” that clearly states the voluntary nature of the vaccine. A violation of this guidance, like that above, constitutes a violation of Article 92 UCMJ.

When we reached out on social media for more information regarding the circumstances surrounding the posted message, multiple sources confirmed the details of the message while offering insight into other actions taken by the regiment and battalion command teams as well. 

Personnel were told their CNA would be revoked if they didn’t get the vaccine, put on a ‘high risk tracker,’ and moved back into the barracks within a couple of weeks. All leave would be denied as well. LTC David Lamborn, the Battalion Commander for 4/3 IN, told his Soldiers they were a “threat to society,” which is why he would not be renewing the soon to expire CNAs. 

Multiple sources claimed CSM Stackpole, the CSM of 1-3 TOG, told his Soldiers that the president had signed an executive order mandating the vaccine, therefore they would have to get it. Some personnel confirmed they received it due to him stating this.

While the Regimental Commander (RCO) and CSM have publicly stated the vaccine is optional, sources stated they have threatened to relieve officers and NCOs from KD (key development) positions if they refuse. The RCO told a formation of Soldiers their “OERs (officer evaluation reports) would reflect” if their formations didn’t hit a certain percentage of vaccinated personnel. 

Violations of standing guidance and communicated memorandums are bad enough, but the particularly nasty aspect of the coercion of SMs to get the vaccine is the blatant violation of their rights. Title 10 U.S. Code Section 1107 and 1107a are the regulatory limits and functions of the administration of a drug (or in this case vaccine) that is considered “investigational new drug” or under Emergency Use Authorization. In these sections it clearly states the right of a SM to have “informed consent”. Informed consent means that the services must inform all SMs of aspects of the vaccine or drug and the circumstances on the importance of them receiving said vaccine/drug. Additionally, it clearly states under informed consent that the “member provide prior consent to receive the drug in accordance with the prior consent requirement imposed under section 505(i)(4) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(i)(4))”. Section 1107 and 1107a go on to state the circumstances in which an investigational new drug (in this case EUA vaccines) could become mandatory for all SMs. Only the President of the United States has the authority to override the informed consent of a SM and must do so through a waiver.

Senior leaders in TOG were smart enough to not put any of their immoral and coercive behavior in an official written policy or order. What recourse do the SM have? Just because coercion is not codified in a FRAGO or recorded in a written order, an individual can still be held liable for violating articles of UCMJ and SMs rights as outlined in U.S. Code. Below are some of the violations that occurred based upon the multiple allegations from witnesses that stepped forward. Make no mistake, we have little to no faith the military justice system will hold any of the leaders liable for their actions and the treatment of their Soldiers; however, a formal 15-6 investigation should be launched based upon the preponderance of evidence supporting the following UCMJ violations:

UCMJ Article violations and who it applies to:

• Article 77 “Principles” for individuals enforcing the illegal treatment of SMs with regards to vaccines
• Article 78 “Accessory after the fact” for the Soldiers who took the claims at IG who did nothing or any SM who took the complaints and did nothing (dependant upon motivation and direction to not act upon the violations (4 reported cases)(Possible based upon the coordinated effort of coercion across the regiment)
• Article 81 “Conspiracy” for the Senior leaders who knowingly violated DoD guidance to bully or create conditions where a SM would be forced into getting the vaccine, whereas had the conditions they created not existed prior to the SM getting the vaccine, that the SM would not have chose to get the vaccine (3 reported cases)
• Article 82 “Soliciting Commission of Offenses” for Commanders overtly or indirectly ordering subordinates to directly violate published DoD guidance
• Article 92 (TBD pending legal review) “Failure to obey an order or regulation” for any officer or enlisted person who violated standing DoD guidance regarding the voluntary nature of the vaccine or who willfully created an atmosphere to force a SM to surrender their legal right to “informed consent” under the provisions of 10 USC 1107a
• Article 115 “Communicating Threats” for the the RCO and RCSM and any other leader who threatened a subordinate’s evaluation or KD position
• Article 133 “Conduct unbecoming an officer and a gentleman” for the RCO, BN CDR, and any subordinate commander who knowingly and willfully violated the published DoD guidance or created the conditions to coerce a SM into getting a vaccine that they otherwise would not have received had the conditions that officer created not been in place

If a 15-6 is not initiated (we doubt it will) and IG is no help, SMs have the right to redress a grievance or a wrong committed to them by their commander under the Article 138 complaint process. A violation of a SMs “informed consent” is absolutely grounds to initiate an Article 138 complaint. Additionally, each SM is capable of filing a Congressional Complaint through their state Senator or Representative. A 15-6 will discover whether each SM “consented” to the vaccine. While on the face of it that is true (they will be able to provide vaccine consent forms), creating a hostile work environment, utilizing coercive behaviors/tactics, and creating conditions where a SM (in their mind) has no other option but to capitulate…does not equal consent.

Previous case law from a federal lawsuit stemming from a similar situation reinforces the grounds a SM, who was either directly ordered or coerced into getting a vaccine that falls under EUA status, has to file a federal lawsuit against the DoD. The results of Doe v. Rumsfeld (2004) further upheld USC 1107 & 1107a and the right to “informed consent”.

• Results of Doe v. Rumsfeld, 341 F. (2004) the court issued a permanent injunction until the FDA followed the correct procedures to certify (the anthrax vaccine) as a safe and effective drug for its intended use. Further, it ruled that the DoD may no longer subject military personnel to involuntary anthrax vaccinations absent the”informed consent” of a SM or a Presidential waiver. The court ruling applied to ALL DoD personnel.
• SMs who were either ordered or tricked into getting the vaccine through misleading information (by the RCO, RCSM, BN CDRs) have grounds for a federal lawsuit as outlined in Doe v Rumsfeld, 341 f. Supp. 2d 1 – Dist. Court, Dit. of Columbia 2004. Court recognized that in order to establish injury plaintiffs must demonstrate that they have taken, or have been ordered imminently to take, the (anthrax vaccine). Doe, 297 F. Supp. 2d at 130-31 supports this and therefore the accusations and sworn statements by the complaining SMs will be enough to prove injury (aka they don’t need a signed policy memo to prove wrongdoing by their command).
• Any decision by the FDA to remove the EUA categorization for the COVID vaccines and move the vaccine into a CAT 1 status would be purely political or due to undue influence seeking a specific outcome. The FDA took 18 years to move the anthrax vaccine into CAT 1 status and of note that was only after a federal lawsuit was brought up challenging the intended use and labeling of the vaccine by SMs. A court issued a preliminary injunction enjoining inoculations thereby reinforcing the “informed consent” requirement (effectively making the vaccine voluntary for SMs again) until either the vaccine was approved by the FDA or Presidential waiver. 8 days later the FDA released findings and moved the vaccine into CAT 1 status.