U.S. AIR FORCE ACADEMY, Colo. (KRDO) -- Graduation is meant to be a day of celebration, a moment to capture a monumental achievement. For many, the 2022 United States Air Force Graduation Ceremony was just that, a celebration. However, graduation day was a little different for three unvaccinated cadets.
In May, the USAFA announced that three cadets refusing the COVID shot would be barred from walking on graduation day and would not be commissioned into the Air Force.
The Department of Defense (DoD) mandated the COVID-19 vaccine for military members in August 2021.
Since that announcement, 13 Investigates learned that more than 14,000 Air Force members remain unvaccinated. That number is equal to 2.9% of the Air Force. Those military members are under same vaccine mandate umbrella that the cadets are.
In recent months, 13 Investigates have explored the issue, speaking with Matt Suess, the father of unvaccinated cadet Nathan Suess, former AFA Lieutenant General Rod Bishop, and federal attorney John "Lou" Michels, who is filing a lawsuit challenging the Department of Defense's vaccine mandate.
What the cadets say
Jameson Barnard is one of the three cadets who refused to get the COVID-19 vaccine despite a military mandate. In an exclusive interview with 13 Investigates, he said his life has been turned upside down since the academy's decision.
According to Barnard, the decision of whether or not to get vaccinated has been nearly a year-long process for him and the other two cadets.
After deciding not to get vaccinated, the cadets went through submitting religious exemptions and subsequent appeals to the Surgeon General of the Air Force when those exemptions were denied.
Barnard claims that all three cadets were given the exact same denial letter. The letter, dated December 22, 2021, states that "remaining unvaccinated poses a threat to all exposed."
"The only thing that they changed in that documents was point nine on it like it was just a rubber stamp thing. There was no points of addressing anything that we had brought up in our exemption request," Barnard said.
Below is a copy shared with 13 Investigates of the Cadet religious exemption letter denial.
Barnard told 13 Investigates he has legitimate reasons for remaining unvaccinated. They include his beliefs about the efficacy of the shot and how it impacts his rights.
"With like the limited amount of information that we had at the time, I was like, Yeah, this is just not the best decision for me or my family," Barnard said. "I believe that my body's a temple and that I shouldn't do things like dishonor. And it's like the same reasons I don't do drugs or those sorts of things. It's just not something I've chosen to do."
Due to his decision, Barnard wasn't able to participate in the graduation ceremony. And, unless something drastically changes, he will not be able to go on to serve in the United States Air Force.
Matt Suess, the father of another cadet who refused to get vaccinated, told 13 Investigates in May the decision was weighing on his son. His son, Nathan Suess, had a wedding planned post-graduation and a commissioning assignment near where his would-be bride is located. Now, those plans are non-existent.
"It's the hardest decision of his life," Suess said. "He's under tremendous pressure and lots of people say just give in and he's definitely wrestling with it. He knows this is wrong, it's immoral."
According to Suess, his son has also been told he has to pay back around $160,000 in education costs if he refuses the vaccine.
"We are looking into legal recourse to fight this because it is an injustice," Suess said.
Suess is a 21-year Navy veteran himself. His wife and bother in-laws are also veterans.
"We are a military family through and through and I am so profoundly disappointed in our military, with how they have handled this," Suess said.
What the Air Force says
13 Investigates has reached out to the Secretary of the Air Force, Frank Kendall, and the Secretary of Defense Lloyd Austin. Both have declined interviews, but have provided 13 Investigates with statements regarding the vaccine mandate and dismissal of unvaccinated cadets.
In a statement to 13 Investigates, a spokesperson for the Air Force Academy said the three cadets have no other option but to receive the COVID-19 vaccine.
"To obey the lawful order and receive the vaccine. Another option is they can elect to voluntarily resign. Otherwise, they will face consequences for disobeying a lawful order.U.S. Air Force Academy Spokesperson
The USAFA told 13 Investigates each religious exemption is handled on a case-by-case basis and the accommodation waiver process adheres to the Department of Defense and Department (DoD) of the Air Force guidance and "respects the religious rights of each cadet."
The USAFA's medical exemption guidance is provided by the Defense Health Agency, which oversees medical requirements for the DoD.
The United States Air Force said they were "not at liberty to speak about individual religious exemptions denial, or if the denials were the same."
In a statement to 13 Investigates, an Air Force spokesperson said:
"Cadets with health and religious concerns were given the opportunity to follow Air Force policy in requesting accommodation based on their faith traditions or medical condition. Part of that religious accommodation process included an interview with a chaplain who determined if the cadet had a sincerely held religious belief. However, even if an individual holds a sincerely held religious belief, the decision authority, in this instance the Superintendent, must weigh that belief against the compelling government interest of ensuring a safe and ready force – crucial to meet global deployment responsibilities."- Rose Riley, Department of the Air Force spokesperson
Each cadet is now waiting on a response from the Secretary of the Air Force on paying back education costs associated with their time at the Academy.
"The Secretary’s determination on whether to recoup the cost is pending," Riley said.
In a COVID-19 town hall from September 2021, an Air Force lieutenant and sergeant spoke about why the COVID vaccine is necessary for military members. Their message was for those in Air Force reserves, not the AFA specifically.
"When we swore that oath, to protect and defend the constitution of the United States that was us saying we are doing to do what it takes to be ready to do those things. This vaccine is one of those things," Lt. Gen Richard Scobee said.
"Take the shot not because it is mandated but more so because it is for your safety, it is for our safety. Our mission is riding on this," Sgt. Timothy White said.
13 Investigates reached out to Democratic Senator Nick Hinrichsen from Pueblo, a former member of the Army. In a statement, Hinrichsen said:
"I've had well over 100 vaccines during my service. Everything from smallpox to anthrax to malaria and dengue. I've never had an issue."- (D) Sen. Nick Hinrichsen
How the mandate is being challenged in court
A federal lawsuit seeking injunctive relief is now challenging the Department of Defense's vaccine mandate. The lawsuit claims the mandate violates federal law.
The man filing the lawsuit on the cadets' behalf is John Michels, an attorney with the Federal Practice Group in Washington D.C.
The lawsuit centers around two claims. The first is that the Air Force Academy violated the cadets' First Amendment rights by denying all religious exemptions. The number of exemptions denials totaled 13 between senior cadets and underclassmen.
"If you are going to tell people 'yeah we are going to let you practice your religion' and engage in activities that say I'm not going to take this shot because of my religious beliefs, you tell people that, and then you categorically or systematically exclude them from the program because of that, then you are running afoul of the first amendment protections," Michels said.
The lawsuit claims the religious exemption denials infringe upon protections in the Religious Freedom Restoration Act enacted by Congress in 1993.
The Act, "prohibits any agency, department, or official of the United States or any State (the government) from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability, except that the government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."
Michels argues that the burden of proof lies solely with the Air Force Academy. In the cadets' religious denial letters, the Air Force cited military readiness and the health and safety of the force as the reasons, reasons Michels says are undercut.
"The compelling interest that the government argues is for readiness but the readiness argument is undercut by the fact that they have lots of unvaccinated people wandering around," Michels said.
The lawsuit also claims the vaccine mandate violated U.S. Code 1107, which provides guidelines for the implementation of an investigational new drug or a drug unapproved for its applied use.
Michels claims the DoD approved the vaccine mandate when the widely available vaccine was only under "emergency use authorization."
The lawsuit claims the Secretary of these went against his own memo written in August 2021, mandating the shot for service men and women.
The memo states, "mandatory vaccination against COVID-19 will only use COVID-19 vaccines that receive full licensure from the Food and Drug Administration (FDA), in accordance with FDA-approved labeling and guidance."
Michels argues that statement contradicts the current vaccine program. The program has been in place for nearly a year.
"The secretary of defense writes in the memo, that this vaccination program will only occur with fully licensed vaccines. That's what his memo says, and then they started ordering shots," Michels said. "You're on my side of the highway and on my side of the highway, when it says legally distinct and we're applying a law, then this vaccine is not licensed."
Michels and his team's first request for relief is the halting of the long-term program. The long-term goal is an order from a judge ordering the DoD's mandate unlawful and unconstitutional in the eyes of the law.
What's next for the cadets
Barnard was supposed to be commissioned as a second lieutenant in the United States Air Force at a base in Fort Carson, Georgia. Instead, he's now looking into a civilian job as an engineer.
"My life was headed one way and now it's like going a completely different direction," Barnard said.
Nathan Suess is in a similar situation. He is pursuing a career in the field of his choice.
Still, despite the deviation from their original plans, both cadets are standing by their decision to remain unvaccinated and defy the "lawful order," according to the Air Force Academy.
Barnard told 13 Investigates he is still technically within cadet standing but is not receiving any pay or any benefits.
"It's kind of like an employer who is not even involved."
According to the USAFA, the cadets were able to receive their college degrees but wouldn't be commissioned into the United States Air Force.
The third cadet who refused to get the vaccine voluntarily resigned.
The Air Force Academy did not give 13 Investigates any details about what us next for the cadets when asked.
Additionally, AFA said they cannot comment on pending ligation.