US Soldier Forced Out over Religion, Sues US Army

US Army Master Sergeant Nathan Sommers made waves last year when he said he faced retribution from the Army for political bumper stickers, reading conservative political books, and serving Chick-fil-A sandwiches at his promotion party after the repeal of Don’t Ask, Don’t Tell.

Those controversies apparently boiled over into what the Army called a substandard performance evaluation (which MSgt Sommers contested). The poor evaluation triggered a review of his continued enlistment, and he was recommended for discharge — even as his other appeals were still being processed. Since he was eligible to retire, he was essentially forced to do so.

The day after he retired, he filed a lawsuit claiming he was forced out of the military due to his religious beliefs.

Master Sergeant Nathan Sommers, a 25-year veteran of the military and a decorated soloist in the U.S. Army Band Chorus, claims he was forcibly retired from the Army due to his religious and conservative political beliefs.

MSgt Sommers may have one of the stronger cases of the recent controversies over religion and belief in the military — though it would seem the Army has created the perception of plausible deniability.

For example, Sommers was admonished for displaying political bumper stickers on his car — something expressly allowed by DoD regulations (see DoDD 1344.10). While his “nObama” sticker got him in trouble, his peers with pro-Obama stickers were not similarly counseled. The lawsuit highlights that his commander allowed someone with a pro-Obama sticker to park in the commander’s own parking spot — something that didn’t change until two days after Sommers filed his own complaint highlighting the unequal treatment. In other words, Sommers has a strong case that his commander singled out his political viewpoint for restriction, even though his conduct was specifically allowed by regulations.

In another example, the “Chick-fil-A incident” began with a “tweet” — from Sommers’ private social media account:

In honor of the repeal of DADT, and the President’s refusal to enforce DOMA I’m serving Chik-Fil-A at my MSG promotion today.

Again, Soldiers are expressly permitted to make political statements in their private capacities. Further, this statement was motivated by and reflected Sommers’ religious beliefs. Yet Sommers was again reproached for what should have been permissible conduct.

The lawsuit accurately notes US law specifically protects religious expression by US military members — protection MSgt Sommers does not seem to have been afforded.

It seems that MSgt Sommers “marked” himself to the Army, and it resulted in increased scrutiny. Besides the issues of controversy, MSgt Sommers has been accused of “failure to go” (missing an appointment) and disobeying an order, charges he disputes but for which he received official (non-judicial) punishment.

The US military knows it can’t discharge someone for their religious beliefs, and it seems to have carefully built a case trying to avoid that accusation:

Why was MSgt Sommers forcibly retired? Not because of his protected religious or political expression, but because he received a substandard evaluation.

But why did he get a substandard evaluation? His “actions appeared to have a negative impact on subordinates” and he “failed to lead by example.”

Notably, those statements are vague, subjective judgments of opinion — something not often allowed in military records. However, most military evaluations allow some leeway for supervisors to subjectively assess their subordinates, which appears to have happened here.

So, when questioned in court, Sommers’ supervisor will attempt to defend his statements based on his general feelings and perceptions — without specifically referring to MSgt Sommers’ religious or political expressions about Chick-fil-A or Sean Hannity. Of course, given MSgt Sommers’ long career of positive evaluations, it certainly seems there is little other explanation for the sudden change in the Army’s interpretation of his duty performance.

In other words, the Army has a built-in defense against claims of religious discrimination: It ‘lost confidence in his ability to lead,’ to borrow another frequent military euphemism — though the lawsuit seems to say it improperly arrived at that conclusion based on his protected religious and political statements.

In truth, this public reaction by the military is common. For example, just last week a female Sailor was about to get kicked out of the Service for “serious misconduct,” which included not following regulations. To be more accurate, however, they were going to kick the sailor out for her hair — but they had a built-in defense:

Her command decided to take her to captain’s mast [non-judicial punishment] for violating a lawful order or regulation, which she refused.

She asked for a court-martial instead…

The day before her arraignment, Sims said, Navy officials informed her that they’d canceled the court-martial and decided to initiate an administrative separation.

Just like MSgt Sommers, the military will say her discharge is for reasons of performance in following orders, which everyone would agree is certainly within the purview of the military to discipline. However, the colloquialism obscures the fact their evaluation was ultimately based on something else, whether hair or religious expression.

No one has yet publicly disputed the basic facts, that MSgt Sommers was criticized by his superiors for his protected expression of his religious and political views. Nor have they provided any other reason for downgrading his performance. (Notably, the accusations of missed meetings and orders occurred after the evaluation that triggered the discharge.)

MSgt Sommers’ Army leadership chose to consider his actions contrary to “good order and discipline” rather than acknowledge their protected status. It is entirely possible and even likely someone in his unit complained about his bumper sticker or choice of politically conservative authors. But the proper response in the military environment is to inform his peers and leaders that such expressions were permissible — as were theirs in opposition to his, if they chose to make them.

No military regulation or law requires uniformity of thought or expression, nor does any such regulation require squelching such expressions to mitigate any possible complaint or offense. In fact, the opposite is true.

Military units have long been capable of performing their mission even when service members have varying ideological beliefs. In fact, the Department of Defense routinely highlights the fact that America gets ‘strength from diversity.’ That does not mean every member of every unit will agree — and, at times, some may be offended by another or not want to work with them. That’s when leadership needs to educate the offended party that the US military gets its “strength from diversity,” and they need to learn to work with others who have beliefs different than their own.

However, as with many large corporations, it is often easier to squelch the source of the offense than support the environment of “diversity” that engenders it.

Ultimately, it is a simple question: Can the US military use complaints or offense by critics — or even the potential of such complaints — as evidence of erosion of “good order and discipline” to take action against a service member for expressing protected religious (or political) beliefs?

This question was at the heart of Congress’ concern about Air Force regulations just a few months ago.  During testimony, several congressmen expressed concern that in its efforts to avoid perceptions or offense, the Air Force was going too far and restricting actual protected liberties.

It seems the Army may have a similar “problem.”

MSgt Sommers faces an uphill battle. Given current controversies over religious liberty in the US military — controversies even between Congress and the Army it raises under the Constitution — it may be a battle that needs to be fought.

MSgt Sommers is represented by retired US Navy Commander John Wells of Military Veterans Advocacy, a member of the Restore Military Religious Freedom coalition.

Also at OneNewsNow and the Military Times.

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