The recent dismissal of the lawsuit filed by US Air Force TSgt Layne Wilson against the Air Force revealed some interesting details about how and why he was disciplined for expressing opposition to same-sex marriage.

As noted previously, the ruling (PDF) indicated the controversy started with an email:

On December 2, 2012, Plaintiff Layne Wilson…sent an email, using his military email account, to an official at the United States Military Academy at West Point objecting to a same-sex wedding held at the military academy’s chapel…

As quoted in the ruling, the email said: 

Gentlemen:
I just read an article that a homosexual wedding was performed at the Cadet Chapel at West Point. I need to let you [know], that this is wrong on so many levels. If they wanted to get married in a hotel, that is one thing. Our base chapels are a place of worship and this [is] a mockery to God and our military core values. I have proudly served for 27 years and this is a slap in the face to us who have put our lives on the line for this country. I hope sir that you will take appropriate action so this does not happen again.

Wilson sent the email to Major Jeffrey Higgins, who Wilson thought was a chaplain at West Point. Instead, Higgins was the executive officer for the Commandant of Cadets. Higgins apparently forwarded the email to his boss, who forwarded it to Utah Air National Guard adjutant General David Fountain along with disparaging comments about Wilson — presumably because he didn’t understand Wilson did not intend for him to receive the message.

As a result, LtCol Kevin Tobias rescinded Wilson’s six-year enlistment contract and issued a Letter of Reprimand (LOR) apparently focused on two points: Wilson’s use of email and his expression of an opinion on sexuality in the Air Force:

[Your email] was in violation of the rules and regulations discussed, and [wa]s in direct opposition to the conversation that you and I had…just the month prior…

While in uniform our opinions and feelings are second to following the laws, regulations and decisions of our elected and military leaders…You were ordered to stop this behavior, however, you disobeyed this order.

LtCol Tobias’ statements are interesting, shocking, and not entirely correct.

PERSONAL OPINION

Directly emailing a General officer and expressing a personal opinion on his policies would almost certainly be actionable, and Wilson would have been wrong to do so. Clearly, however, Wilson did not intend to write any General or commanding officer (as even the court seems to admit) — and he did not object to any individual commander’s policies, as even the Commandant admitted. Thus, Wilson’s opinion, expressed as intended to a chaplain rather than a commanding officer, is not the “violation” Tobias and others seem to claim it was. The permissibility of the content of an email must stand on its own; it does not suddenly become impermissible because it is seen by unintended recipients.

Still, in order to punish Wilson, LtCol Tobias focused on the content of Wilson’s message. Tobias’ assertion that Wilson’s opposition to same-sex marriage is punishable per se is both disturbing and potentially discriminatory.  To wit, if Wilson’s email had contained praise for the same-sex ceremony in the West Point chapel, would Wilson still have received a reprimand?

In other words, TSgt Layne Wilson was punished not for accidentally emailing a General officer’s exec, but for expressing an opinion with which his commander disagreed.

As was discussed at the time, LtCol Tobias is wrong to assert that members of the US military categorically abdicate their ability to have personal opinions when they put on the uniform. It is true that military members must follow laws and military policies regardless of their opinions.  It is also true that some opinions could potentially be restricted (a contrary political opinion on the Commander-in-Chief, for example).  Notably, however, the restriction on expressing those kinds of opinions is explicitly stated in regulations.

No military guidance or policy states a member of the military cannot express an opinion as Wilson did. As included in the ruling, Wilson’s email contains nothing that violates any “laws or regulations.”

LtCol Tobias apparently realized that his position was indefensible at some point and “clarified” the LOR with Wilson’s legal counsel, claiming the punishment wasn’t, in fact, about Wilson’s opinion that Tobias had said he “wasn’t allowed to have” in uniform.  Tobias said Wilson [emphasis added]

“was not reprimanded for his personal opinion” — which “[m]embers of [the UTANG] have the right to express…subject to [the] Code of Conduct and Air Force Standards” — “but rather for communicating his personal opinion using official government email together with his military unit and organization, rank, position, and military contact information.”

What regulation prohibits Airmen from “communicating a personal opinion” using government email or their official signature blocks?

There simply isn’t such a regulation — and, in point of fact, LtCol Tobias didn’t even cite one.  Tobias essentially said Wilson was punished for violating regulations that don’t exist.

PERSONAL USE

The claim that Wilson’s email “was in violation of the rules and regulations” does not withstand scrutiny.

LtCol Tobias appears to believe TSgt Wilson’s email to West Point was “personal,” making it contrary to the “official” use permitted by Air Force regulations. Ironically, when Wilson attempted to protest the Air Force regulations used against him, the court makes a point of favorably saying Tobias “does not specify which Air Force regulation or policy Plaintiff violated,” thus making Wilson’s protest moot.

Some would say it is irresponsible, lazy, or, more cynically, disingenuous for a commander to issue a written LOR telling a subordinate he “was in violation of the rules and regulations” without actually citing which “rules and regulations” he had violated. For LtCol Tobias, however, the omission worked out in his favor.

In actuality, the DoD guidance for “authorized use” of government email is fairly broad, as is the Air Force guidance in AFMAN 33-152. That LtCol Tobias may not understand what constitutes impermissible “personal use” of government email may be revealed in another portion of the ruling, which reveals he admonished Wilson for interacting with the military health insurer TriCare using his government email.

In their examples of authorized use, DoD regulations say something as random as “scheduling auto appointments” is permissible use of government communications systems. Yet LtCol Tobias appeared to scold Wilson for engaging with TriCare, a military health insurer, and later an officer he believed to be a military chaplain, two things far more military-related than car repair.

Thus, it is entirely understandable that Wilson would object to the LOR and appeal it. Given that no regulations were violated, which even Tobias seemed to concede by omission, it isn’t entirely understandable why Tobias issued the LOR in the first place, except for the fact he was likely embarrassed after being highlighted by his subordinate in front of multiple General officers across the Air Force. Still, professional embarrassment is not inherently actionable.

FOLLOW ON and SECOND LOR

As the “conflict” proceeded and Wilson protested, LtCol Tobias eventually “acknowledged error” in rescinding Wilson’s six-year enlistment contract and reinstated it.  Realize that by this point LtCol Tobias has had to reverse or “clarify” (modify) both of the punishments he levied against Wilson — the contract cancellation and the LOR — potentially revealing a significantly flawed premise from the start.

Of course, there are serious legal ramifications to the Air Force for improperly handling enlistment contracts, and because of the administrative documentation and processes associated with such documents, there would have been ample official proof to support Wilson’s protest. Tobias appears to have realized his actions were improper, and that Wilson had a legitimate, actionable, and justifiable complaint. LORs, however, are much more difficult to oppose (as has been discussed) — and Tobias let the LOR stand.

After that decision, the ruling notes Wilson took to Facebook and said

I only want to say one thing to you Kevin Tobias!!! Sir!!! You are way out of line!!! You embarrass me, our country, and our unit!!! I have done nothing but try to support our constitution and our religious freedoms. You are part [of] the problem with this country. I have tried reason with you, use[d] diplomacy with you, but that doesn’t seem to work. Shame on you sir!!!!

Wilson acknowledges posting those remarks but says he recognized he was “venting” and deleted it “immediately” (though not before someone else saw it). Unfortunately for Wilson, there is little defensible about his Facebook rant, and his decision to post it publicly, even if he quickly recognized his error, is actionable. This ultimately resulted in a second LOR and the loss of his security clearance.

THE LAWSUIT

Ultimately, Wilson sued over the punishments under the Religious Freedom Restoration Act, the First and Fifth Amendments, the Administrative Procedure Act, and the Privacy Act.  This lawsuit was dismissed, as previously discussed.

One side note, however, was a confusing exchange during the court process in which Wilson asserted — and the Air Force agreed — that he was “in civilian status” when he wrote the inflammatory Facebook post described above.  The two sides agreed that Air Force Instruction 1-1 “does not apply” to his “off duty conduct.”

Yet, the Air Force still punished him for the post.

CONCLUSION

TSgt Wilson’s long journey began when he wrote an email to a chaplain. There was nothing remarkable nor actionable in the email he wrote, and his correspondence was consistent with that which might occur among service members and chaplains. That the email was later placed in the hands of others, including General officers to whom it was not addressed, and that some drew incorrect conclusions about to whom it was addressed, does not change the permissible nature of Wilson’s (initial) conduct.

LtCol Tobias’ decisions to revoke Wilson’s contract and issue an LOR punishing Wilson for the email were almost certainly inappropriate. Even he appeared to recognize this, reversing the contract decision and later “clarifying” his uncited and poorly-worded LOR.

LtCol Tobias’ statements that Wilson was not, as a member of the Air Force, allowed to have an opinion on homosexuality — or that opinions contrary to support of homosexuality were incompatible with military service — were not only wrong but portended potential prejudicial action on his part. Remember, LtCol Tobias also said

I respect his feelings but I’m not comfortable reenlisting [Wilson] with his strong feelings about this matter…

This was an Air Force commander telling his subordinate he was not “comfortable” allowing Wilson to serve because of his religious beliefs. In any other circumstances Tobias would likely have been crucified for “unconstitutional” conduct, imposing his beliefs on others, and creating a “religious test” for government service in his unit.

That very important context cannot be ignored, as it forms the foundation from which Tobias acted. Given that he cited no regulations in his actions against Wilson, Tobias appears to have acted on either a misconceived notion of Air Force policy or his personal feelings and biases — and then struggled to defend his position as the protests began.

The controversy between LtCol Tobias and TSgt Wilson was one of the most clear presentations of the conflict in the military between religious expression and the military’s acceptance of open service by homosexuals. An Air Force member’s permissible conduct was punished based on the religious content of his expression — despite the fact no harm was done, and no rules or regulations restricted that conduct.

Some might say the punishment of TSgt Layne Wilson for his religious expression seems to support some claims that society — and ultimately the military — will require support and even affirmation for erotic liberty, even at the cost of religious liberty.

And it is unlikely this controversy will soon end.

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