Court rules against soldier who claims to have been forced to retire due to religious beliefs

A former Army Band Staff Sergeant, who says officials in the service forced him to retire because of his expression of Christian faith and conservative views, said he expected to appeal after an unfavorable decision in his case.

The U.S. Federal Claims Court on Tuesday released a ruling in favor of a government motion to dismiss the case brought by Nathan Sommers, saying that because he chose retirement rather than separation from l army, this decision was not unintentional.

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Sommers, whose lawsuit made national headlines when he filed it in 2014, claimed his display of anti-Obama stickers on his car, reading a book by conservative talk show host Rush Limbaugh before a performance, and ostensibly serving Chick-fil- A sandwich at a promotional party “in honor of the repeal of Don’t Ask, Don’t Tell” served everything to turn his unit against him and hastened the end of his Army career.

He served in the Aviation from 1988 to 1997 he joined the Army immediately after his honorable release and held a position in Army Band as a tenor soloist. He was promoted to master sergeant on September 1, 2012. In the same month, according to the tribunal’s notice, he posted two Twitter messages mentioning Do Not Ask, Do Not Say, the policy prohibiting gay troops from open service which has been repealed. in 2011, and his decision to serve Chick-fil-A.

“In honor of the repeal of DADT and Obama / Holder’s refusal to enforce DOMA law, I am serving Chick-fil-A at my MSG promotional reception for the military today,” he said. he tweeted in a post, referring to then-President Barack Obama, former United States Attorney General Eric Holder, and the Federal Marriage Defense Act, which would later be declared unconstitutional by the court Supreme of the United States.

While the owners of the fast food chain have never weighed in on Don’t Ask Don’t Tell, Dan Cathy, COO of Chick-fil-A, made public statements in 2012 to oppose same-sex marriage , which led to controversy and boycott.

In October 2012, according to court documents, Sommers was advised by his chain of command against any political activity while in uniform, and his commander, Col. Thomas Palmatier, opened a factual investigation.

Continuing tensions between Sommers and his chain of command culminated in a non-judicial sanction proceeding on June 7, 2013, on the grounds that he had traveled inappropriately while on convalescent leave. While Sommers disputed the claim, he was found guilty and punished.

In May of that year, he also received a poor enlisted performance appraisal which stated, among other things, that he “had difficulty accepting correction from his leadership and taking responsibility for his own actions.” ; “has demonstrated limited potential for positions of higher rank and responsibility;” and “did not treat people the way they should be”.

Sommers claims it was the first mediocre exam of his military career.

Less than a year later, on February 7, 2014, as part of the Army’s Quality Management program, he was informed that he had a choice: accept release before August 1; apply for voluntary retirement with benefits; or appeal and ask to be detained. Sommers’ appeal was dismissed on March 26 and he elected to retire on the last day before his release deadline of July 31.

“The question is whether Master Sgt Sommers retired voluntarily,” Sommers lawyer John Wells of the Military Veterans Advocacy Inc. legal group told Military.com. “He only accepted retirement on the last day. It’s not a real decision; he fought it until the last minute of the last day.”

The court disagreed, however. Giving his opinion, Judge Richard Hertling said Sommers had not exhausted his options before choosing to retire to preserve his military benefits.

“The Complainant has taken and continues to challenge both his assessment and his non-judicial sanction, factors which the Complainant argues informed the [Qualitative Management Program] “Hertling wrote.” The plaintiff could have continued to seek administrative remedies. He could have brought his complaints both with the assessment and the non-judicial sanction, and with the AGQ’s decision itself, to this Court had he accepted a discharge. He could have won, but there was a risk in such an approach. He has decided to retire. He had this option because of his many years of distinguished service. “

Wells said he plans to take the case to the Federal Circuit Court of Appeals for another look.

“I think that probably needs to be decided at the appeal level,” he said.

He added that he believed the action taken against Sommers was an “obvious” attempt to target him for his views.

“It was a set-up by a clique within the army marching band that did not agree with his political and religious beliefs,” he said. “We watched it unfold, knew exactly what was going to happen, and it happened.”

– Hope Hodge Seck can be contacted at [email protected] Follow her on Twitter at @HopeSeck.

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