A U.S. Navy officer is suing the leaders of the Defense Department and the Navy because they have denied his waiver requests to exempt him from getting the mandated COVID-19 vaccine.

Lt. Cmdr. Graham Fletterich, a surface warfare officer assigned to the aircraft carrier Abraham Lincoln, is concerned about the safety risks of getting the vaccine after he was naturally infected with the novel coronavirus this summer, according to the complaint, filed this month with the U.S. District Court for the District of Columbia.

Fletterich alleges that Navy commanders and medical staff denied his waiver exemptions without considering the unique circumstances of his situation, including a civilian doctor’s assessment that his COVID antibodies are already at high levels from his prior infection, according to the lawsuit, which lists Defense Secretary Lloyd Austin and Navy Secretary Carlos Del Toro as defendants.

“Notwithstanding clear scientific evidence of immunity … Navy officials are violating their own regulations to force an unnecessary and potentially dangerous vaccination under threat of termination,” the lawsuit states.

He also alleges that his promotion to O-5 was spiked and he received a negative review after his waiver applications were denied.

Despite Fletterich’s concerns about stacking COVID vaccine on top of any antibodies from natural infection, the U.S. Centers for Disease Control and Prevention recommends that those who have been infected still get the vaccine.

Immunity is complex, and the level of protection afforded someone via natural immunity can vary depending on how bad their illness was, the time elapsed since infection and their age, according to the CDC.

“No currently available test can reliably determine if a person is protected from infection,” the agency notes. “Getting a COVID-19 vaccine gives most people a high level of protection against COVID-19 even in people who have already been sick with COVID-19.”

An August study published by the National Institutes of Health found that a person’s risk of getting re-infected with COVID is more than two times higher if they aren’t vaccinated.

Other CDC-approved studies and reports in recent months have also shown evidence that a person is better protected against COVID when they are vaccinated, even if they suffered a previous infection.

But Fletterich’s lawsuit — which seeks to overturn the Navy’s potentially career-ending ruling against the officer — alleges that the Navy refused his waiver applications without considering his particular situation.

“I believe it’s important that the Navy follows their own regulations,” Fletterich said in a statement provided by one of his attorneys, Matthew Hefti. “I believe it’s important that every Sailor of every rank gets the individualized medical consideration they’re entitled to. … My sincere hope is that the Navy allows me to continue serving the country I love.”

The Navy declined comment, citing the ongoing litigation.

But leadership has spent much of the year echoing the sentiment of medical experts worldwide: that the vaccines are safe and vital to returning to any sense of normalcy, while preserving mission readiness in the fleet.

“We would not send our folks into combat without flak and Kevlar,” Rear Adm. Bruce Gillingham, the Navy surgeon general, said earlier this year. “The enemy this time is a virus, and we have a biological body armor for them to take and use to protect them. … Put it on, be protected.”

While Fletterich is now facing dismissal from the Navy, officials have said it will likely take months to separate vaccine refusers.

Hefti did not respond to questions regarding whether the officer would take the COVID vaccine when his natural antibodies had waned to lower levels.

Fletterich tested positive for COVID-19 on Aug. 10 and was flown off his carrier, but returned to duty Aug. 23.

The next day, Defense Secretary Lloyd Austin mandated that all servicemembers get vaccinated.

The officer alleges he tried to get answers from the Navy regarding medical effects of the vaccine on “his own individualized medical circumstances,” the lawsuit states.

“Despite his repeated attempts, LCDR Fletterich repeatedly hit the stone wall of an unyielding company line in which military medical providers either refused or were simply unable to directly answer his legitimate questions and concerns related to the mandatory vaccines,” the lawsuit states.

Fletterich requested a temporary medical exemption from the COVID vaccine on Sept. 14, notifying Navy officials that his natural immunity was high from his recent infection and that a civilian doctor had advised him not to get the jab, the lawsuit states.

The ship’s senior medical officer denied Fletterich’s request less than a day after he submitted it, denying the officer his right to receive “customized care” specific to his situation, the lawsuit alleges.

The lawsuit also argues that Fletterich has exhausted all options within the Navy system and therefore had to file the lawsuit.

“He has followed his service’s procedural requirements to request the appropriate medical exemption on the advice of his medical provider … and he has procedurally exhausted the meager administrative avenues available to him in the military to protect his rights and receive a fair review of his request considering his individual and clinical circumstances,” the lawsuit states.

Part of Fletterich’s argument has to do with a Navy medical instruction pertaining to immunization and infectious disease prevention, which states that an example of “a proper medical exemption” is “[e]vidence of immunity based on serologic tests, documented infection, or similar circumstances,” the lawsuit states.

But Navy administrative messages issued in recent months have stated that prior sailors aren’t considered vaccinated if they’ve had a prior infection.

The officer submitted a request for a temporary administrative exemption to getting the vaccine on Nov. 13, a request his commanding officer denied on Nov. 15.

That same day, Fletterich received a negative fitness report and counseling record, or FITREP, in which his CO recommended not promoting Fletterich to O-5, “despite his otherwise excellent marks and pending promotion,” and not recommending him for retention, the lawsuit alleges.

Fletterich had previously been selected for promotion to O-5, a leveling up that was supposed to go into effect on Dec. 1, according to the lawsuit.

“LCDR Fletterich has no other administrative or procedural options to obtain a fair review of his medical exemption request, leaving a lawsuit as the only way to have his primary physician’s advice considered in contemplation of an irrevocable medical procedure,” the lawsuit states.

As of Thursday, 5,472 active duty sailors out of a force of 347,409 had not been vaccinated and now face separation.

The sea service has approved seven permanent medical exemptions and 296 temporary medical exemptions in the active duty force as of Thursday.

The website CoffeeOrDie.com first reported news of Fletterich’s lawsuit.

Geoff is a senior staff reporter for Military Times, focusing on the Navy. He covered Iraq and Afghanistan extensively and was most recently a reporter at the Chicago Tribune. He welcomes any and all kinds of tips at geoffz@militarytimes.com.

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