18-page response letter sheds light on misinformation and inaccuracies in Captain John Fahs’s rush to judgment against a highly-decorated military hero
Click here to watch Chaplain Wes Modder and his wife Beth share about
their painful and discriminatory experience.
On behalf of client U.S. Navy Chaplain Wes Modder, this week First Liberty Institute sent a response letter to Rear Admiral Mary M. Jackson, USN, Commander, Navy Region Southeast. Admiral Jackson is now reviewing Captain Jon R. Fahs’s requested career-ending punishment of Chaplain Modder.
The detailed, 18-page letter asks Rear Admiral Jackson to reject Captain Fahs’s request that Modder be detached for cause (the military equivalent of being fired), removed from the promotion list, and sent to a Board of Inquiry where he could be involuntarily forced out of the Navy.
Captain Fahs is Modder’s commanding officer at the Naval Nuclear Power Training Command in Goose Creek, South Carolina. He declined to meet with Chaplain Modder’s attorneys to discuss the case.
MAJOR HOLES AND VIOLATIONS
First Liberty Institute’s review of the facts and law uncovered numerous major holes in Fahs’s initiation of, and response to, the internal investigation of Chaplain Modder. Additionally, the letter spells out why the proposed punishment of Chaplain Modder would violate a host of federal and military laws and important procedural safeguards.
“We appreciate the opportunity the Navy afforded us to respond to Captain Fahs,” says Mike Berry, First Liberty Institute Senior Counsel and Director of Military Affairs. “We believe that based on the evidence, the Navy will exonerate Chaplain Modder and restore him to continue his true calling of ministering to sailors and Marines as he has done for the past 19 years [4 years as a decorated U.S. Marine, and then as a Navy chaplain for the past 15 years].”
“GRAVE INFRINGEMENT” OF RELIGIOUS LIBERTY
Although First Liberty Institute’s findings contain three major grounds for dismissing Fahs’s request for extraordinary punishment of Chaplain Modder, the most critical is the devastating effect such punishment could have on morale, religious freedom, and fighting readiness in the U.S. military.
This concern stems from the fact that the charges against Chaplain Modder originated over objections to his expression of religious beliefs in private counseling sessions—even though his expression is protected by law and required by the denomination that “endorses” (i.e., sponsors) him as a chaplain.
“[T]he proposed actions would effect a grave infringement of Chaplain
Modder’s rights under the Department of Defense (“DOD”) and Navy religious freedom regulations, the Religious Freedom Restoration Act, and the First Amendment,” the letter states.
The attorneys for Chaplain Modder warn, “This is a matter of serious concern not just for Chaplain Modder, but for the military as a whole, particularly as the military seeks to accommodate the significant and often unique spiritual needs of an increasingly diverse workforce.”
ACCUSED . . . FOR SERVING SPIRTUAL NEEDS
With a Doctorate in Military Ministry, Chaplain Modder is a respected and decorated chaplain. After his stellar service, including as Force Chaplain for Naval Special Warfare Command, in 2014 Chaplain Modder was assigned to the Naval Nuclear Power Training Command at the request of a 4-star Admiral.
A very small number of military personnel in private counseling sessions asked Chaplain Modder for spiritual guidance regarding certain personal conduct. Since Chaplain Modder is endorsed by the Assemblies of God—the respected Bible-believing denomination to which he belongs—he is required to provide spiritual guidance in line with their viewpoint, as he has consistently and faithfully done for 15 years. But in this case, these few individuals at Chaplain Modder’s relatively new location did not agree with his traditional, biblical views regarding their inquiries and they complained.
Berry explains: “They were looking for someone to simply tell them what they wanted to hear. And when they didn’t hear what they wanted to hear, they complained.”
Captain Fahs responded to the complaints by initiating an investigation. When the investigator recommended no punishment, Captain Fahs did the exact opposite and requested severe, potentially career-ending action against Chaplain Modder. He also removed Modder from his unit and isolated him at the base chapel. The chaplain has been cut off from his sailors, and he is forbidden from ministering to their spiritual needs.
In a video interview, Chaplain Modder said that his “hope and prayer is that truth will prevail. It has to be the outcome, because that’s who we are as America.”
THREE STRIKES AGAINST THE ACCUSATIONS
Believing that the Navy is now taking its duty of review seriously and that a careful examination of the record will exonerate Chaplain Modder, First Liberty Institute has offered Rear Admiral Jackson three reasons to reject Captain Fahs’s request:
PROBLEM #1:
The Requirements for Punishing Chaplain Modder
Simply Have Not Been Met
According to Navy regulations, “detachment for cause” on the basis sought by Captain Fahs must be supported by a showing of “one or more significant events resulting from gross negligence or complete disregard of duty.” Yet the investigation reportfails to identify a single event resulting from gross negligence or a “complete disregard of duty.”
Significantly, Boards of Inquiry “are reserved for the investigation of major incidents . . . or serious or significant events” such as catastrophic loss of life or property. In the past, Boards of Inquiry were mainly used for incidents such as vessels being sunk due to alleged performance failures. In the Navy, because Boards of Inquiry are expensive and time-consuming they are typically reserved only for the most serious matters such as running a ship aground.
The allegations in Captain Fahs’s report of investigation fall well short of constituting a major incident, or even a serious or significant event. To the contrary, according to Modder’s attorneys, the alleged conduct at issue, if it occurred, “represents nothing more than Chaplain Modder’s efforts to fulfill his duty to provide counsel and care to service members to allow them to serve their country effectively.”
The letter cites other instances where Fahs’s requested punishment of Chaplain Modder and the conduct of the investigation fail to comply with military procedure.
PROBLEM #2:
The Investigation Was Incomplete and Overlooked
Key Evidence and Witnesses
According to the response from First Liberty Institute, “From the outset, the investigation evidenced a rush to judgment against Chaplain Modder and disregard for the procedures governing command investigations.”
The letter specifically cites problems such as Captain Fahs appointing an officer of the same rank as Chaplain Modder with no prior investigative experience,against which Navy regulations caution.
Similarly, Captain Fahs couched the order for the investigation in language skewed to pre-determine the outcome. This would have caused the investigator to believe his commander desired a particular result. Even then, however, the investigating officer recommended only that Chaplain Modder be given an alternative assignment and a letter of instruction—not potential expulsion from the Navy!
Not content to accept the investigating officer’s recommendations, Captain Fahs instead escalated the matter by seeking the detachment for cause, removal from the promotion list, and a Board of Inquiry.
PROBLEM #3:
Chaplain Modder’s Actions Are Protected
by the Religious Freedom Restoration Act (RFRA),
Military Regulations and the First Amendment
As stated by the First Liberty Institute response, “Chaplain Modder is called and compelled to accomplish his chaplain duties—which include pastoral care and counseling—in accordance with the doctrinal tenets of the Assemblies of God denomination and his sincerely held religious beliefs.”
Granting Captain Fahs’s proposal “would violate [Chaplain Modder’s] rights under federal law and military regulations.”
The letter specifically cites the Religious Freedom Restoration Act of 1993 (RFRA), which prohibits the federal government from substantially burdening an individual’s sincerely held religious beliefs without a compelling interest that is furthered by the least restrictive means.
“By threatening to end Chaplain Modder’s Navy career as a result of expressing religious beliefs,” states the response, “Captain Fahs has placed a substantial burden on Chaplain Modder’s sincerely held beliefs, and no compelling government interest has been cited to justify Captain Fahs’s actions.”
That makes this case a potential tipping point for religious freedom in the U.S. military.
As the letter states, “If it imposes the proposed adverse actions against Chaplain Modder, the Navy would infringe his rights to express his religious beliefs in the context of providing counsel and care in violation of the Free Speech and Free Exercise clauses of the First Amendment to the United States Constitution.”
CONFIDENT OF CHAPLAIN MODDER’S EXONERATION
The law is on the side of Chaplain Modder, all chaplains, and all members of the U.S. military who want to exercise their faith. But as always, rights on paper must be fought for—including the use of forceful legal action—or they can be violated and made insignificant.
Chaplain Modder’s case, as the letter of response to Admiral Jackson notes, is reviewable by a federal civilian court, because men and women in the Armed Forces do not lose their religious freedoms when they join the military.
Yet First Liberty Institute is confident that the Navy will—after reviewing the information included in its response—reject Captain Fahs’s unwarranted request and will exonerate Chaplain Modder so he can continue ministering to sailors and Marines and fulfill his duty of service.
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About First Liberty Institute
First Liberty Institute is a nonprofit legal group dedicated to defending and restoring religious liberty across America — in our schools, for our churches, in the military and throughout the public arena. Liberty’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders. For information, visit www.FirstLiberty.org.
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