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UPDATE: First Liberty Institute Files Formal Military Complaint Against Navy Chaplain’s Commanding Officer

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June 11, 2015

Article 138 calls for immediate reversal of Captain Jon R. Fahs’ denial of Chaplain Wes Modder’s religious accommodation request

 

If Chaplain Modder is NOT exonerated by a U.S. Navy legal investigation, he could lose
his decorated 19-year career in the U.S. military, his life-changing ministry to service members,
and his pension . . . which places his ability to provide for his family at great risk.

In the ongoing battle to obtain full exoneration of U.S. Navy Chaplain Wes Modder, so he may continue ministering to sailors and Marines and fulfill his duty of service, First Liberty Institute filed an Article 138 complaint—a formal military grievance—against Captain (CAPT) Jon R. Fahs this week.

CAPT Fahs, who is Chaplain Modder’s commanding officer at the Naval Nuclear Power Training Command in Goose Creek, South Carolina, requested the chaplain 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).

Why? Because of the complaints from a very small number of military personnel who did not agree with Chaplain Modder’s traditional, Biblical views—which he expressed in answer to their questions about faith, family, and marriage—during private counseling sessions.  First Liberty Institute is currently defending Chaplain Modder against these potentially career-ending threats. 

In March, First Liberty Institute also submitted a request for a religious accommodation on behalf of Chaplain Modder. The request asked CAPT Fahs to permit Chaplain Modder to continue to perform his chaplain duties in accordance with his sincerely held religious beliefs, and the Biblical teachings of his endorsing denomination.  Incredibly, CAPT Fahs denied this request (Watch Chaplain Modder and First Liberty Institute President & CEO Kelly Shackelford talk more about this in an interview on Fox & Friends yesterday morning).

In his denial, CAPT Fahs relied on outdated and obsolete Navy policies. He disregarded federal laws and military regulations that protect chaplains’ religious freedom. The Article 138 complaint seeks to reverse and correct CAPT Fahs’ denial of Chaplain Modder’s religious accommodation request.

“We hope that by filing this Article 138 complaint,” says First Liberty Institute Director of Military Affairs Mike Berry, “the U.S. Navy will agree that CAPT Fahs’ denial of the chaplain’s religious accommodation request is a blatant violation of the chaplain’s religious liberties.”

ARTICLE 138 COMPLAINT OUTLINES 3 SPECIFIC REQUESTS

All service members have the right under the Uniform Code of Military Justice (UCMJ) to file an Article 138 complaint. Article 138 of the UCMJ allows for:

Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer. . . .

In the Article 138 complaint, sent to Admiral John M. Richardson, Director of Naval Reactors, First Liberty Institute lists three specific requests it is asking the U.S. Navy to consider regarding CAPT Fahs’ denial of Chaplain Modder’s religious accommodation request:

REQUEST #1: Reverse CAPT Fahs’ denial of Chaplain Modder’s religious accommodation request.

Chaplain Modder requested a religious accommodation to express his sincerely held religious beliefs during pastoral counseling sessions with service members. Chaplain Modder submitted the request in order to protect his rights under Department of Defense (DOD) and Department of Navy (DON) regulations. CAPT Fahs’ denial of Chaplain Modder’s request for religious accommodation is unconstitutional, and violates federal law and military regulations.

Chaplain Modder’s religious expression is consistent with the doctrinal tenets of the Assemblies of God, his endorsing denomination. Accordingly, the Navy must accommodate his expression unless it can demonstrate a compelling governmental interest that is implemented by the least restrictive means. Because there is no compelling interest in censoring a chaplain’s religious expression during religious ministry, the Navy must accommodate.

REQUEST #2: Conduct an investigation to determine if CAPT Fahs’ actions or threatened actions violate any federal laws or military regulations and take appropriate action should violations be uncovered.

Under the Constitution, Department of Defense and Navy regulations, denial of Chaplain Modder’s request for accommodation constitutes religious discrimination in the Navy, and it is unlawful.

In Secretary of the Navy Instruction 1730.8B, Navy policy is to “accommodate the doctrinal or traditional observances of the religious faith practiced by individual members when those doctrines or observances will not have an adverse impact on military readiness, individual or unit readiness, unit cohesion, safety, discipline, or mission accomplishment.”

Department of Defense Instruction (DODI) 1300.17, provides that “unless it could have an adverse impact on military readiness, unit cohesion, and good order and discipline, the Military Departments will accommodate individual expressions of sincerely held beliefs. . . .”

Like DODI 1300.17, the Religious Freedom Restoration Act (RFRA)prohibits the Navy from substantially burdening Chaplain Modder’s sincerely held religious beliefs without a compelling interest. Because it is a federal statute, a violation of RFRA is a legal cause of action, potentially exposing the Navy to civil liability.

REQUEST #3: Implement remedial measures within the appropriate Navy commands to ensure these violations do not occur again.

CAPT Fahs’ denial of Chaplain Modder’s religious accommodation request is unsupported by law, and violates federal law and military regulations. It is also inconceivable that a chaplain whom CAPT Fahs described as establishing the “clear benchmark” for the Professional Naval Chaplaincy could somehow be unfit for duty as a chaplain mere weeks after setting that benchmark.

Failure to remedy these violations may also result in violation of the Administrative Procedure Act (APA). Under the APA, a federal agency’s failure to follow its own regulations is reviewable by a federal court. CAPT Fahs did not follow DOD and Navy regulations. The Navy’s failure to remedy those violations may give rise to a cause of action under the APA, which could be reviewed in federal court.

IN JEOPARDY: A HIGHLY DECORATED MILITARY CAREER

Chaplain Modder, who holds a Doctorate in Military Ministry, has a stellar record which includes assignment as Force Chaplain for Naval Special Warfare Commandand service to elite forces such as DEVGRU (aka SEAL Team Six) and other Navy SEAL teams. Ironically, because he personified its core values, the Navy also featured Chaplain Modder earlier in his career in a recruiting video for chaplains in which he explained the spiritual nature of the guidance he was privileged to offer.

Now, U.S. Navy officials have removed this highly-decorated chaplain and military hero from his unit and isolated him at the base chapel. Chaplain Modder has been cut off from his sailors, and he is forbidden from ministering to their spiritual needs.

But the law is on the side of Chaplain Modder—and all chaplains and service members of the U.S. Military who want to exercise their faith. With the filing of Article 138, First Liberty Institute is confident the U.S. Navy will be compelled to closely inspect CAPT Fahs’ unlawful actions against Chaplain Modder, and fully exonerate the chaplain so he can return to meeting the spiritual needs of his fellow service members.


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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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