MilitaryReligiousFreedom.org

Fighting for our servicemembers' rights, so they can fight for ours.


PRESS RELEASE

Wednesday, December 30, 2015

CONTACT: BEKKI MILLER (337) 356-8696


MRFF DEMANDS AGGRESSIVE FORMAL DoD INVESTIGATION

MRFF Demand Letter to Department of Defense General Counsel, Director, Standards of Conduct Office,
Hon. Ruth S. Vetter, Esq.

Wednesday, December 30, 2015

Hon. Ruth S. Vetter, Esq.
Director, Standards of Conduct Office
Department of Defense General Counsel

1600 Defense Pentagon, Suite 3E783

Washington, D.C. 20301-1600

Via Email and UPS

RE: Standards of Conduct Complaint

Dear Ms. Vetter:

I am the Founder and President of the Military Religious Freedom Foundation [MRFF]. We are an IRS 501(c)(3), not-for-profit, national civil rights advocacy charitable organization, headquartered in Albuquerque, NM, but with foundation staff and resources located all over the country as well as overseas. MRFF is dedicated to ensuring that all members of the United States Armed Forces receive the Constitutional guarantee of religious freedom to which they and all Americans are entitled by virtue of the First Amendment. As such, we seek to educate the components of the Department of Defense [DoD] and its respective leaders and commanders regarding the Constitutional parameters pertaining to its restrictions on religious involvement by the military hierarchy.

Conversely, we advocate on behalf of our clients – almost 44,000 active duty U.S. Sailors, Soldiers, Marines, Airmen, Cadets, Midshipmen, National Guard and Reserve personnel, Coast Guard men and women, Veterans, and civilian and contractor DoD employees – when official religious sectarian practices interfere with or constrain their precious Constitutional rights. MRFF believes that no religion nor religious philosophy may be advanced by the United States Armed Forces over any other religion, religious philosophy, or non-religion. It is in that regard that MRFF wishes to lodge an official formal complaint.

There is currently pending before the U.S. Court of Appeals for the Armed Forces [CAAF], the case of a Marine who was court-martialed for, inter alia, violating direct orders of her supervisor, United States v. Sterling, (CAAF Dkt # 15-0510/MC). Lance Corporal (LCpl, E-3) Sterling is appealing her conviction and sentence (which included a Bad Conduct Discharge) for which CAAF has granted review. MRFF submitted an amicus curiae brief in support of neither party while CAAF was considering whether or not to grant review, which it subsequently has done, to ascertain if the decision by the Navy-Marine Corps Court of Criminal Appeals [NM CCA] was correctly decided.

Of significant concern to MRFF and the basis of our complaint herein, is an amicus curiae brief filed in support of Sterling by "Nine Retired General Officers" of the U.S. military. They are:

• General (Ret.) Victor E. Renuart, USAF;
• Lieutenant General (Ret.) Michael Gould, USAF;
• Lieutenant General (Ret.) William G. Boykin, USA;
• Major General (Ret.) Cecil Richardson, USAF;
• Major General (Ret.) Gary L. Harrell, USA;
• Major General (Ret.) Jack Catton, Jr., USAF;
• Brigadier General (Ret.) Orwyn Sampson, USAF;
• Brigadier General (Ret.) Richard Abel, USAF;
• Brigadier General (Ret.) Gary M. Jones, USA.

A copy of their Brief is attached herein for your review.

Our official, formal complaint, after reviewing the applicable statutes, regulations and guidance concerning the mandated Standards of Conduct, focuses on the following:

1. As you will see, nowhere in the Generals’ Brief is there any type of "disclaimer" that they are participating as a "friend of the court" in their personal capacities even though the CAAF is a designated part of the judiciary per 18 U.S.C. § 202(e)(2). Here, as you know, the Office of Government Ethics (OGE) issued Legal Advisory 14-08, dated November 19, 2014, which opined in relevant part:

[A] clear and conspicuous disclaimer explaining that the employee’s service is done in his or her personal capacity would be sufficient to eliminate any potential appearance that the employee’s agency or the government sanctioned or endorsed the employee’s service with the outside organization or the activities . . . .1

2. Retired General Officers, drawing retired pay, remain subject to the Uniform Code of Military Justice [UCMJ], per 10 U.S.C. § 802(a)(4);

3. Their overt support of LCpl Sterling via their Brief absolutely does not pass "the smell test" under 18 U.S.C. § 205(a)(2), "Activities of Officers and Employees in Claims Against and Other Matters Affecting the Government", as they are clearly acting as an "agent" before a "court" "in which the United States is a party or has a direct and substantial interest," which here is a direct adverse interest to the United States;

4. As a plain reading of their Brief amply demonstrates, the Generals are highly critical of the decision by the NM CCA in the Sterling case, now before the CAAF. DoD’s Joint Ethics Regulation, DoD 5500.07-R (as amended), expressly forbids such criticism of the NM CCA’s decision at issue herein, as paragraph 2-304, states: "any use of military titles is prohibited if it in any way casts discredit on DoD . . . ." by retired military members. Such conduct is, in MRFF’s opinion, illegal as violating Article 133, of the Uniform Code of Military Justice, [10 U.S.C. § 933], as "Conduct Unbecoming an Officer" – certainly something that anyone graduating from one of the Nation’s Military Service Academies or who is a General Officer should be cognizant of.

These are not de minimis concerns as a number of these General Officers have run afoul of the DoD’s Standards of Conduct in the past and thus are charged with actual knowledge of these prohibitions, as if their respective "retirement" briefings were not enough. A prime example is Major General (Ret.) Jack Catton, Jr., USAF, who in 2007 was found by the DoD Inspector General to be in violation of the DoD Joint Ethics regulations regarding endorsement of non-federal entities by his participation in uniform at the Pentagon in a 2004 promotional fundraising video for the fundamentalist Christian organization "Christian Embassy." And even before that investigation had gotten underway, General Catton was the subject of another inquiry for having used his official U.S. Air Force email account to send out fundraising emails for Bentley Rayburn, another retired General Officer and a then political candidate running for Congress in 2006. Further, General Catton not only blatantly disregarded DoD regulations on endorsing political candidates in this matter, but further explicitly stated in his emails that "we are certainly in need of Christian men with integrity and military experience in Congress." Another classic and tragic example is Lieutenant General (Ret.) William G. Boykin, USA, who was singled out for admonishment by the Bush administration in 2003 for his Christian supremacist speeches, delivered in civilian churches, while wearing his official U.S. Army uniform, in which he made virulently anti-Muslim remarks and painted the War on Terror as a holy war.

On behalf of the MRFF, and our tens of thousands of armed forces clients et al, we officially ask that an aggressive formal investigation be commenced immediately herein. A General Officer should know better than to openly criticize a decision of a United States Court while openly advocating against the U.S. Government’s interests in a case pending in the Nation’s highest military court. While, as individuals, they do not forfeit their First Amendment right to freedom of speech, as commissioned officers holding General Officer rank, they of ALL people should know that using their military rank as they have done so here is shamefully illegal and intolerable.

Sincerely,

Michael L. "Mikey" Weinstein, Esq.
Founder and President
Military Religious Freedom Foundation

CC:
DONALD G. REHKOPF, JR., Esq.
MRFF Counsel of Record

1 Available at:
http://www.oge.gov/OGE-Advisories/Legal-Advisories/LA-14-08--Reference-to-Official-Title-and-Position-by-Employees-Affiliated-with-Private-Organizations-in-Their-Personal-Capacity

Click to read PDF version of MRFF's Demand

"Nine Retired General Officers" Amicus Brief


EMAIL FROM MRFF's
COUNSEL OF RECORD

From: "Don Rehkopf, Jr."
Subject: U.S. v. Sterling [CAAF Dkt # 15-0510/MC]
Date: December 28, 2015 at 7:18:43 PM MST
To: Mikey Weinstein <mikey@militaryreligiousfreedom.org>

Mr. Weinstein:

As counsel of record for the Military Religious Freedom Foundation [MRFF], enclosed for your and the MRFF's Board's review is an Amicus Curiae Brief filed today in the above-styled case by "Nine Retired General Officers."  While I am an advocate in this matter, it strains credulity that nine retired General Officers would file an official pleading in a United States Court without any type of disclaimer that they are appealing in their personal (as opposed to official) capacities.  Indeed, some of the named amici have previous personal experience in failing to ensure such a distinction, as you know.

DoD's Joint Ethics Regulation, DoD 5500.07-R (as amended) expressly forbids such criticism of the U.S. Navy-Marine Corps Court of Criminal Appeals' decision at issue herein, as paragraph 2-304, states: "any use of military titles is prohibited if it in any way casts discredit on DoD . . . ." by retired military members.   Such conduct is in my opinion, illegal as violating Article 133, of the Uniform Code of Military Justice, [10 U.S.C. § 933], as "Conduct Unbecoming an Officer" – certainly something that anyone graduating from one of the Nation's Military Service Academies or who is a General Officer should be cognizant of.

http://www.dtic.mil/whs/directives/corres/pdf/550007r.pdf

 Equally as disturbing to me are their claims that, inter alia, "Religious belief has inspired and continues to inspire America's men and women to join military service." Patriotism is what inspired most of us who have served to join and remain in the military. "Freedom of religion" and its lawful exercise can only mean that as individuals, each person – to include members of the Armed Forces – has the freedom to follow the dictates of our personal consciences, be they religiously inspired, philosophically inspired, or secularly influenced. 

 But, this case is not about religion or the Appellant's "free exercise" of it.  It is about her refusing to obey direct orders of her superior, an NCO, to remove signs on her USMC issued desk furniture and equipment, in a common area where other Servicemembers would come for assistance, inside of a USMC building on a major USMC military installation – something that her NCO had a valid military interest in keeping "neutral."  Indeed, the message on the 3 signs she posted – contrary to the claims of her counsel and many of the various amici, was not a "Bible verse." Rather, it contained a paraphrasis of her own and subsequently claimed to be "biblical" when in fact it is not.  Something that the Nine Retired General Officers, and their claimed religious expertise misrepresent when they refer to it as a "Biblical quotation." [Brief at 12].  But the words she typed were: "no weapon formed against me shall prosper." [Joint Apdx at 113; emphasis added].  That is not a Biblical quotation from any recognized English translation of the Bible, specifically the Old Testament Book, Isaiah 54-17 [KJV], which is generally accepted to be a rendition of what the prophet Isaiah was told by God and reads: "No weapon that is formed against thee [you] shall prosper." 

 That being said however, in view of the MRFF's long-standing policy of publicly "calling out" organized attempts at religious proselytizing (outside of the Chaplaincy) within the military, and the fact that their Brief comes dangerously close to violating the First Amendment's Establishment Clause as well as violating in principle and practice, Article VI, § 3, U.S. Constitution's "religious oath" prohibition [". . . no religious test shall ever be required as a qualification to any office or public trust under the United States], I have no objection to MRFF's publicly pointing out the above issues.  

Sincerely,

/S/  Donald G. Rehkopf, Jr.
DONALD G. REHKOPF, JR., Esq.
MRFF Counsel of Record

Click to read on MRFF Website


###