Petition for Writ of Certiorari — Robertson v. United States

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98-304

FILED

AUS 4 1998

No.

CLERK

In The asta

SUPREME COURT OF THE UNITED STATES

October Term, 1998

Garland Robertson,

Petitioner

VS.

United States of America,

Respondent

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

Garland Robertson,

Petitioner, pro se

1336 E. 19th Street

Tulsa, Oklahoma 74120

918/743-0765

WA i«

Pe ORE PLAIN AOOEBP

eR TAR

oer

Service, by acting as superior

QUESTIONS PRESENTED

Whether, pursuant to limitations imposed

on the actions and decisions of a federal

agency by the Administrative Procedure

Act (APA), 5 U.S.C. § 701, et seq:

1. Is the combined authority of church

and state as fused in the requirement

that an Air Force chaplain be a

“representative of a religious body and a

commissioned officer" (AFR 265-1, 93) so

repugnant to military necessity that it

is caused to be constitutionally

dysfunctional?

2. Did Air Force officers fail to comply

with statutory and regulatory procedures

by removing an endorsed Air Force

chaplain from the pulpit as discipline

for alleged “unauthorized political

activity" rather than proceeding

according to provisions directed by the

Uniform Code of Military Justice (UCMJ)?

3. Did Air Force officers violate

constitutional command and congressional

mandate for management of Air Force

chaplains as specified in Air Force

Regulation (AFR) 265-1, The Chaplain

theological judges, thereby discounting

the moral assessment prerogative of an

Air Force chaplain's endorsing faith

community?

4. Did Air Force officers abuse their

discretionary authority by censoring the

religious programs sponsored by a base

chapel, selecting which religious

perspectives would be published on the

military installation, using religion to

promote secular interests that did not

coincide with religious interests, and

exercising inordinate influence over the

religious lives of military subordinates?

5. Did the Air Force Board for

Correction of Military Records (AFBCMR)

err by not taking into consideration the

fact that the Appellant's performance was

rated "Unsatisfactory" only after the

Appellant was removed from the pulpit for

alleged “unauthorized political

activity"--the singular factor which

prompted the Secretary of the Air Force

(SAF) to order the chaplain's release

from active duty?

iii

TABLE OF CONTENTS

Page

Cee ee PrORORtee é.« c.c.s.0:0.6.0.6.0 cde i

Tense CF CORTORGE Awd cc's Ka Weck cece iii

Saeed: OF CECECEORS as ac veh co die wwe iv

Orders and Judgments Below ........ 1

Statement of Jurisdiction ......... 1

Constitutional and Statutory

Provisions Involved .......eeeee. 1

Statement of the CaS@ ..csecccceves 3

A. Historical Background ....... 4

B. Background of District Court

Case No. 95-C-1135-B “eeeeeeee 8

C. The Proceedings Below, Case

No. 96-C-888-B eeseeeeeeeeeeeeeee 8

Reasons for Granting the Writ ..... 11

The Petition Should Be Granted

Because The Judgment Below Con-

tradicts The Judgment Of

The U.S. Court Of Appeals,

2nd Circuit e*eeseteeentee8tkeee8e # © & @ @ 11

II. The Petition Should Be Granted

Because The Court Below Abandoned

Provisions Of APA To Condone The

Illegal Actions Of Air Force

Officers *oenreee#ee#efeege#e+fe#3+fnfeefe#efe#r’n5foee#e#e#e# 8 @ 12

III. The Petition Should Be Granted

Because The U.S. Supreme Court

Has Not Judged The Character and

Nature Of The Military

Chaplaincy ee enreeserfeenee#e#feeee#e#tkse##e### @ 13

Conclusion se @eeweeeee#srtferee#se#ee#rnfmeeee#e#eteee#eee#eee#e#e*# 15

TABLE OF CITATIONS

Cases Cited:

Katcoff v. Marsh, 755 F.2d 223 (2d

Cl Ss TSO St: Sab ks OES 0 6033s wT OIL EELS

Marsh v. Chambers, 463 U.S. 783

(1983) ee © fe © € a 2 &@ be @: 2 .2-o2 2-23 @ Ss B *e ff &©eteeee 8

Piper v. United States, 887 F.2d 861

(8th Cit. 1989) eevee ee eeeeeeeeeeee 10

Walz v. Tax Commission, 397 U.S. 664

(1970) *eeeevreeeeeeeeeeeeeeeeeeeeeee q

Statutes Cited:

S$ U.S.C. § F702 (ca cec cee ee ccccccccce 2

5 U.S.C. § FOG weseccscvvceecce 2,11,12,13

10 U.S.C. § BO2 cenrceesr cocceveces 6

10 U.SiC.: | SOGTIR? cect eee See eases 3,6

10 U.8.Ce 8 SSB cncccvcestesseséec 6

26 U.S.C 9 L254CL) sceeveasescivens 1

United States Constitution Cited:

First Amendment ..-.ceeeeecveeeves 1,3,10,14

Military Statutes and Regulations Cited:

Uniform Code of Military Justice .. 6

Air Force Regulation 265-1 ... 3,10,11,13

APPENDIX

Appendix A -~- Order of the United States

Court of Appeals for the Tenth Circuit

Filed May 27, 1998;

Order and Judgment of the Court of

Appeals Filed May 1, 1998 ......e.. l

Appendix B -- Order of the United

States District Court for the

Northern District of Oklahoma

Filed August 28, 1997 .ecocccccvece 13

Appendix C -- Ruling of the Air Force

Board for Correction of Military

Records Published August 23, 1996 . 71

Petitioner Garland Robertson

respectfully requests that a writ of

certiorari be issued to review the

judgment of the United States Court of

Appeals for the Tenth Circuit in this

case.

ORDERS AND JUDGMENT BELOW

The Orders and Judgment of the United

States Court, of Appeals for the Tenth

Circuit is on docket of Case

No. 97-5183 (App. A). The Order of the

District Court is on docket of Case

No. 96-C-888-B (App. B); and a related

proceeding is on District Court docket of

Case No. 95-C-1135-B. The decision of

AFBCMR is at App. C.

STATEMENT OF JURISDICTION

The Judgment of the United States

Court of Appeals for the Tenth Circuit

("Court of Appeals") was entered on May

1, 1998. The Court of Appeals denied a

timely petition for rehearing on May 27,

1998 (App. A).

The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United

States Constitution provides:

Congress shall make no law respecting

an establishment of religion, or

prohibiting the free exercise thereof;

or abridging the freedom of speech, or

of the press; or the right of the

people peaceably to assemble, and to

petition the Government for a redress

of grievances.

5 U.S.C. § 702 states in pertinent

part:

[a] person suffering legal wrong be-

cause of agency action, or adversely

affected or aggrieved by agency action

within the meaning of a relevant

statute, is entitled to judicial review

thereof. An action in a court of the

United States seeking relief other than

money damages and stating a claim that

an agency or officer or employee

thereof acted or failed to act in an

ofiicial capacity or under color of

legal authority shall not be dismissed

nor relief therein denied on the ground

that it is against the United States...

5 U.S.C. § 706 states in relevant

part:

To the extent necessary to decision and

when presented, the reviewing court

shall decide all relevant questions of

law, interpret constitutional and

statutory provisions, and determine the

meaning or applicability of the terms

of an agency action. The reviewing

court shall -

(2) hold unlawful and set aside agency

action, finding, and conclusions found

to be -

(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in

accordance with law;

(B) contrary to constitutional right,

power, privilege, or immunity;

jurisdiction, authority, or

limitations, or short of statutory

right;

(D) without observance of procedure

required by law;

(E) unsupported by substantial evidence

in a case subject to sections 556 and

557 of this title or otherwise reviewed

on the record of an agency hearing

provided by statute; or

(F) unwarranted by the facts to the

extent that the facts are subject to

trial de novo by the reviewing court.

In making the foregoing determinations,

the court shall review the whole record

or those parts of it cited by a party,

and due account shall be taken of the

rule of prejudical error.

AFR 265-1, The Chaplain Service, 4

, Girects:

Air Force Chaplain. A chaplain is a

cepresentative of a religious body and

a commissioned officer according to 10

U.S.C. 8067. Chaplains observe the

requirements of the first amendment of

the Constitution.

STATEMENT OF THE CASE

The constitutional endorsement of the

military chaplaincy endures, in theory,

to extend the Free Exercise right to

soldiers whose military assignments

require them to be absent from their

chosen communities of faith. In

practice, the United States Air Force

uses the military chaplaincy as a

national religious confederacy,

manipulated by Air Force officers to

promote secular interests that do not

coincide with religious interests.

A. Historical background.

On January 8, 1991, an Air Force

chaplain was charged with "unauthorized

political activity" and removed from the

base chapel's preaching rotation after

the following letter to the editor was

published in a local newspaper.

The impression which Vice

President Quayle has communicated to

the American soldiers in Saudi Arabia

cannot go unchallenged. His comment,

"The American people are behind you,"

must be clarified to indicate that the

American people are not united in their

decision to support a military

offensive against the aggression of

Saddam Hussein in Kuwait.

While the human rights violations

committed by the Iragis against the

— people of Kuwait are atrocious,

unfortunately these violations are not

exceptions to human rights abuses

elsewhere in the world. Our presence

in the Persian Gulf region has to do

with economic issues primarily.

I have written 25 members of the

Armed Services committees in

Washington, and their responses reveal

a substantial number of Americans,

including governmental officials of

distinction, oppose the U.S.-led

forceful expulsion of the Iraqis from

Kuwait. Other options are available

which many believe are more sensitive

to the best interest of the world

community.

If President Bush remains adamant

about using force to drive Iraq from

Kuwait, the American soldiers will

respond with the full measure of their

wa dine tian salts

ied Bw haben’

capabilities--they are servants

committed to defend the national

interests of the people to whom they

have entrusted their lives. The need

to use military force in this

circumstance, however, is an open

issue--one which the citizens of this

country will not allow to be decided in

the vacuum of sectarian perception.

GARLAND L. ROBERTSON

Chaplain

Dyess Air Force Base

The intense congressional debate which

criticized the use of U.S. military power

in a presidentially-initiated offensive

against Iraq followed shortly after this

letter was published.

Inspite of recently praising the

chaplain in a November, 1990, "Definitely

Promote" career progression, over the

next 30 months the Air Force reduced the

chaplain from a highly commended officer

to an unsatisfactory leader, an

incompetent preacher, insubordinate and

mentally-ill, then ordered the chaplain

to leave active duty. Throughout this

lengthy controversy the endorsing

denomination continuously supported the

chaplain's religious ministry.

Petitioner still believes the

unprecedented action of local Air Force

officers to restrict chapol preaching

compromises the integrity of the military

chaplaincy, insults the calling of a

religious minister, discounts the

credibility of the chaplain's faith

community, and disregards the spiritual

sensitivities of military servants that

determine their choice of a religion.

Persons who perform the function of

military chaplains in the Air Force must

be commissioned officers. 10 U.S.C. §

8067(h). They have rank without command,

but otherwise are to be afforded the same

considerations for all other officers.

10 U.S.C. § 8581. Chaplains are subject

to disciplinary proceedings according to

provisions of the UCMJ. 10 U.S.C. §

802. As such, alleged "unauthorized

political activity" would merit issuing a

declaration of violation of Article 91 of

the UCMJ, then, if disputed by the

alleged offender, the matter could be

resolved at court-martial. This

proscribed procedure, however, was

rejected by local supervisors.

Tension inherent in requiring

chaplains to be representatives of a

religious hody and commissioned officers

prompted local Air Force officials to

censor religious programs presented by a

local base chapel. Censorship caused the

federally-funded military chaplaincy to

promote secular interests that did not

coincide with religious interests. Air

Force officers assumed the role of

theological critics and selected the

religious perspectives which would be

published on the military installation.

The record will disclose that a vast

majority of American Christian churches

had, by January 1991, publicly announced

that a war initiated by the U.S. against

Iraq at that time could not be morally

justified according to the tenets of the

ancient “Just War" theory. In censoring

the religious witness of its chaplains,

the Air Force exercised inordinate

influence over the religious lives of

subordinate military servants by creating

a religious climate "friendly" to

political intent. Thus the Air Force

ultimately controlled the context in

which its members made moral judgments.

;

Soldiers of the Christian faith who

enter the voluntary armed forces come

primarily from religious communities that

participate in the ancient "Just War"

tradition. In varying degrees, these

congregations recognize the obligation to

move beyond the original tenet of "doing

no harm." They have discerned that

"protecting innocent persons from harm"

(dating from the fifth-century Christian

community) may sometimes require the use

of violence. These persons of faith

measure such circumstances according to

the sacred writings and accumulated

guidance of their traditions. Soldiers,

therefore, bring with them these

previously-embraced provisons for moral

assessment.

In theory, chaplains preserve this

Free Exercise right for soldiers, making

"religion available to soldiers who have

been moved by the Army to areas of the

world where religion of their own

denominations is not available to them."

Katcoff v. Marsh, 755 F.2d 223, 234 (2d

Cir. 1985) Sometimes this "right"

requires soldiers to struggle to

reconcile the moral assessment of their

chosen faith community whenever it

contradicts political intent. What

appears to be functional in theory,

however, may become intolerable in

practice. When Air Force officials

censor chaplains, they evoke questions cf

loyalty and integrity, and they force

chaplains to choose either for the

military or for the religious body.

At issue in this case is whether the

Air Force violated a chaplain's mandate

to be both a representative of a

religious body and a commissioned

officer; whether fulfilling this dual

responsibility is possible.

B. Background of District Court

Case No. 95-C-1135-B.

After the Air Force Legal Service

denied a prior complaint against the Air

Force, Plaintiff filed a claim against

the United States under the Federal Tort

Claims Act (FTCA) and APA 5 U.S.C. § 701

et_seq., in the District Court for the

Northern District of Oklahoma on November

14, 1995. The Court's Order, filed March

25, 1996, dismissed Plaintiff's FTCA

Claim for lack of subject matter

jurisdiction, with prejudice, and

dismissed under APA for failure to state

a Claim, with prejudice.

C. The Proceedings Below

Case No. 96-C-888-B.

After AFBCMR denied the Plaintiff's

requests to delete substandard

performance reports from the military

record and to rescind SAF's order

directing removal from active duty,

published August 23, 1996, Plaintiff

filed another claim against the United

States under APA in the same District

Court on September 27, 1996. The Court

concluded that Plaintiff's prior claim

under APA "should have been without

prejudice to refiling when a final agency

decision was reached" (Order, App. B,

p. 35-36, n.4).

The Court recognized "this

institutional duality of the military

chaplaincy directly implicates the

Establishment Clause principles of

‘nonentanglement' and ‘neutrality'",

citing Marsh v. Chambers, 463 U.S. 783,

801-03. (Order, App. B, p. 57) The Court

further observed:

that the test for nonentanglement for

programs, such as the military

chaplaincy, which require an

administrative relationship between

government and religious entities, is

that the programs must preserve "the

autonomy and freedom of religious

bodies while avoiding any semblance of

established religion" Walz v. Tax

Commission, 397 U.S. at 672. (Order,

App. B, p. 57)

Similarily, the Court informed that "the

principle of '[{gq]Jovernmental neutrality

in matters of religion' prevents

government from advancing or inhibiting

religion." Id. at 694. (Order, App. B, p.

57-58) The Court concluded, "Without

these safeguards, the institutional

duality of the military chaplaincy

engenders the risk of politicizing

religion." Id. at 695. (Order, App. B,

p.- 58)

The Court discussed the serious

questions of "excessive entanglement" and

lack of "neutrality" which are raised in

the military administration of the

chaplain programs (Order, App. B, p

58-59), and remarked:

The excessiveness of such entanglement

is no more apparent than is a situation

such as the one Robertson presents

where the Air Force requires a

chaplain's early retirement (or

discharges a chaplain) based on

military criteria, although the

chaplain's endorsing agency has not

withdrawn its endorsement of the

chaplain as its representative. This

unilateral decision on the part of the

Air Force hardly preserves "the

autonomy and freedom" of the endorsing

agency. Walz, 397 U.S. at 672.

Despite these precedential

observations, the Court "found no

underlying constitutional violation of

Robertson's rights under the First

Amendment, and thus AFR 265-1, and...

the Court affirm({ed] the decision of the

AFBCMR." (Order, App. B. p. 69)

The Court's assessment and judgment

of the Petitioner's grievance

acknowledges the deference traditionally

applied to military disputes (Order,

App. B. p. 42-44). The Court's

application of deference to military

discretion in this case, however, is

excessive privilege because of the

existence of AFR 265-1, The Chaplain

Service. This regulation is a

descriptive statute by order of SAF and

signed by the Air Force Chief of Staff.

As such, AFR 265-1 is the official,

predisposed policy designed by the Air

Force itself for managing Air Force

chaplains, including directing a chaplain

to be “a representative of a religious

body and a commissioned officer" and to

“observe the requirements of the first

amendment." AFR 265-1, Section B, 93.

Line of duty regulations promote the

benefit of the employer, and deviation

from regulations proscribing activities

of service personnel in "line of duty" is

sufficient to impute liability to the

government under FTCA. Piper v. United

States, 887 F.2d 861, 863-64 (8th

Cir. 1989). [Although not on point, this

discussion confirms that the judiciary

believes it is reasonable to expect the

military to comply with its own rules. ]

The presumptuous, censorial behavior of

Air Force officials in removing endorsed

chaplains from the pulpit for

"unauthorized political activity" readily

qualifies as "arbitrary, capricious, an

abuse of discretion" and action "in

excess of statutory jurisdiction,

authority." APA 5 U.S.C. §

706(2)(A)&(C).

REASONS FOR GRANTING THE WRIT

THE WRIT SHOULD BE GRANTED

BECAUSE THE JUDGMENT OF THE COURT BELOW

CONTRADICTS THE JUDGMENT OF THE

COURT OF APPEALS, 2ND CIRCUIT

: Katcoff v. Marsh, 755 F.2d 223 (2d

Cir. 1985) upheld the constitutionality

; of the military chaplaincy, citing

preserving Free Exercise as the critical |

factor (at 223, 234). Free Exercise |

protects the prerogative of the faith )

community to make independent moral

assessment. Judgment by the Court below

inhibits Free Exercise by distinguishing

"moral assessment" as "political

activity" and permitting Air Force

officers to remove endorsed chaplains

from the pulpit for unchallengeable

alleged "unauthorized political

activity."

AFR 265-1 clearly intends to prevent

the Air Force from simultaneously

maintaining a chaplain service and

controlling the religious perspective

published by a base chapel. Such a

license would rape the protective

boundary of church-state independence

guarenteed by the Constitution and

affirmed by Katcoff which deference to

military discretion cannot excuse. Such

a license would unequivocally and

indefensibly create a religious

environment designed by Air Force

officers which inhibits chaplains from

representing the moral assessment that

Originates in their faith communities.

Such a license obviously would work to

respect the establishment of a specific

religious orientation--one particularly

nationalistic, officially advanced, and

federally funded.

II.

THE WRIT SHOULD BE GRANTED

BECAUSE THE COURT BELOW ABANDONED

PROVISIONS OF APA TO CONDONE

ILLEGAL ACTIONS OF AIR FORCE OFFICERS

Administrative Procedure Act, 5 U.S.C

§706, instructs the reviewing court to

(2) hold unlawful and set aside action,

findings, and conclusions found to be

(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in

accordance with law; (B) contrary to

constitutional right, power, privilege,

or immunity; (C) in excess of statutory

~ jurisdiction, authority. or

limitations, or short of statutory

right; (D) without observance of

procedure required by law. ...

Clarification provided in the "Notes"

that follow indicates a statute of a

federal agency held to be an accurate

representation of congressional mandate

is an appropriate guide for the court to

review agency action and decision (Note

12). Also, assuming the statutory

procedures meet constitutional

requirements, the court is limited to

determination of whether the agency

substantially complied with its statutory

iia

and regulatory procedures, and whether

action was within the scope of the

agency's authority (Note 24).

Futhermore, it is arbitrary and

capricious for an agency not to take into

account all relevant factors in making

its determinations. An agency's failure

to consider important aspects of a

problem which the original regulation was

intended to address renders the

regulation arbitrary and capricious (Note

109).

By its own admission, the Air Force

indicates that, when determining the Air

Force had acted appropriately in managing

the Appellant, AFBCMR did not take into

consideration the implications of

removing an endorsed chaplain from the

pulpit for alleged unauthorized political

activity:

Plaintiff claims the decision of the

AFBCMR failed to take into

consideration the impact of removing

chaplains from the preaching staff on

religion in the military. It was not

necessary for the AFBCMR to evaluate

this argument. Defendant's Reply to

Plaintiff's Response to Defendant's

Motion to Dismiss and Cross Motion for

Summary Judgment, p. 3, Case 9-C-888-B

As a result, the Air Force's alleged

violation of constitutional command and

congressional mandate reflected in AFR

265-1 was exonerated.

IIl.

THE WRIT SHOULD BE GRANTED |

BECAUSE THE UNITED STATES SUPREME COURT

HAS NOT JUDGED THE CHARACTER AND NATURE

OF THE MILITARY CHAPLAINCY

Two Courts of Appeals have recently

delivered conflicting judgments

concerning the character and nature of

the military chaplaincy. These

contradictions confirm that historical

concerns associated with the maintenance

of a uniformed, federally-funded

chaplaincy have not been resolved.

The Katcoff court considered apparent

conflicts with the military chaplaincy

and the religion clauses of the First

Amendment and concluded constitutional

measure is maintained whenever Free

Exercise prevails (at 228, 234). Free

Exercise will justify the chaplaincy in

spite of Establishment Clause concerns

only insofar as the chaplains actually

promote free exercise.

The court below comfortably allows

the Air Force to view any "moral

objection" as "political activity":

The court further recognized that

although plaintiff sincerely believed

that the war he opposed would be

morally unjust, this sincerity did not

require accommodation by the Air Force,

which viewed any moral objection as

political under its rules. (Appeals

Order, App. A, p. 9-10)

By designating moral assessment as

political activity, both the Air Force

and the court below concede the military

chaplaincy endures in essence to function

as a political agency. Yet, an essential

element of Free Exercise is affirming the

prerogative of the faith community to

make independent moral assessment.

The character and nature of the

military chaplaincy remains unclear.

CONCLUSION

Regulation of religious

representation is an important

consideration under the Constitution on

any level, yet no where more serious than

in so close an association between

government and religion as the evolved

structure and function of the military

Chaplaincy presents. Allowing military

officers to declare as "political

activity" the endorsed religious witness

of a military chaplain and, as discipline

for "unauthorized" offenses, to remove

the chaplain from the preaching rotation

is a perplexing and dangerous precedent,

one the Supreme Court may not responsibly

relinguish to a lower judiciary. Such a

"discretionary privilege" destroys the

Free Exercise guaranty Katcoff requires

for constitutional blessing and leaves

the military chaplaincy in a peculiarly

precarious predicament.

The Supreme Court should redeem,

perhaps even "define," the religious

integrity of the military chaplaincy by

finally judging this complaint. In

addition, because of opposing judgments

by the Courts of Appeals 2nd and 10th

Circuits, the Supreme Court of the United

States should clarify the constitutional

role of the military chaplaincy.

Accordingly, Petitioner respectfully

requests that the petition for writ of

certiorari be granted.

GARLAND ROBERTSON

Petitioner, pro se

— 1336 E. 19th St.

Tulsa, OK 74120

(918)743-076518

APPENDIX A -- OPINION OF THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

GARLAND ROBERTSON, Plaintiff-Appellant

UNITED STATES, Defendant-Appellee

No. 97-5183

ORDER

{

Filed May 27, 1998

Before BRORBY, BARRETT, and BRISCOE,

Circuit Judges.

Appellant, Garland Robertson's petition

for rehearing is denied.

Entered for the Court

PATRICK FISHER, Clerk of Court

ORDER AND JUDGMENT OF THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

GARLAND ROBERTSON, Plaintiff-Appellant

UNITED STATES, Defendant-Appellee

No. 97-5183

(N.D. Okla.)

ORDER AND JUDGMENT*

{* This order and judgment is not binding

precedent, except under the doctrines of

law of the case, res judicata, and

collateral estoppel. The court generally

disfavors the citation of orders and

judgments; nevertheless, an order and

judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3.]

Filed May 1, 1998

Before BRORBY, BARRETT, and BRISCOE,

Circuit Judges

After examining the briefs and

appellate record, this panel has

determined unanimously that oral argument

would not materially assist the

determination of this appeal. See

Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff Garland Robertson appeals

from an order of the district court

determining that defendant Air Force did

not violate his First Amendment rights.

As in the district court, plaintiff

argues on appeal that his involuntary

retirement from active duty as an Air

Force chaplain should be set aside

because his retirement was based upon

performance evaluations which served as

religious censorship in violation of his

First Amendment rights and also served to

establish a military religion in

violation of the First Amendment. [n.1

Plaintiff does not continue to argue on

appeal that the Air Force did not comply

with prescribed administrative procedures

in his retirement process. See

Appellant's Br. at 41.] Additionally,

plaintiff argues that his action was not

barred from adjudication under the

Federal Tort Claims Act (FTCA), 28 U.S.C.

§$ 2671-2680, pursuant to Feres v. United

States, 340 U.S. 135, 146 (1950). We

affirm.

The district court thoroughly and

accurately set forth most of the facts in

its order. See R., vol. 1, tab 13 at

2-16. We provide only a brief summary

here. On January 5, 1991, prior to

Operation Desert Storm, plaintiff wrote a

letter to the local newspaper editor

indicating moral and ethical objections

to initiating a war against Iraq.

Plaintiff signed his name and indicated

that he was a chaplain at Dyess Air Force

Base. His commander reprimanded him for

writing the letter setting forth his

military title and base assignment. The

commander stated that plaintiff had

violated Air Force regulations precluding

such political activity. Based on the

reprimand, the senior chaplain refused to

allow plaintiff to preach as scheduled

the following Sunday and removed him from

the preaching schedule until further

notice.

Thereafter, plaintiff's orders to

staff a hospital to care for soldiers

wounded in Operation Desert Storm were

canceled. Although he was twice selected

for reassignment to another Air Force

base, both bases refused him positions.

In May 1991, plaintiff was returned

to the preaching rotation. Following a

sermon in which he informed the

congregation of the actions taken against

him by Air Force officials, he received a

letter of counseling. In December 1991,

after a Thanksgiving service, plaintiff

was permanently removed from the

preaching schedule for improperly

focusing his sermon on Native American

spirituality, rather than on traditional

Christian beliefs.

Plaintiff received substandard

performance reviews rating him as not

meeting standards for leadership skills

from April 1991 to April 1993. Plaintiff

took issue with the reviews. Pursuant to

orders, he underwent three psychological

examinations during that time period.

The second and third examinations

indicated that he suffered from a

personality disorder, not otherwise

specified, with narcissistic,

obsessive-compulsive, and

passive-aggressive traits.

In March 1993, plaintiff was

requested to retire voluntarily, or face

administrative action to remove him for

substandard performance. On June l,

1993, plaintiff requested voluntary

retirement effective June 1, 1994. On

June 15, 1993, he was notified that a

discharge proceeding had been initiated

against him. The Board of Inquiry found

that plaintiff should be removed from

active duty and given an honorable

discharge. On December 1, 1994,

plaintiff retired.

On December 16, 1994, he filed an

application for. correction of his

military records with the Air Force Board

for the Correction of Military Records

(AFBCMR). He requested that his poor

performance ratings be removed from his

personnel record. He also requested that

the order of involuntary retirement be

rescinded.

In November 1995, plaintiff filed an

action in district court asserting claims

under the Administrative Procedure Act

(APA), 5 U.S.C. §§ 701-706, and the

FTCA. The district court dismissed the

FTCA claims for lack of subject matter

jurisdiction and dismissed the APA claims

for failure to state a claim, based on

the doctrine of nonjusticiability.

Plaintiff did not appeal.

Subsequently, the AFBCMR denied his

request to delete his substandard

performance reports from his records and

to rescind his involuntary retirement.

Plaintiff then filed this second

federal court action under the APA. He

alleged the Air Force had violated his

First Amendment rights and had

established a military religion. The

district court denied relief, and this

appeal followed.

As a preliminary matter, we first

consider the district court's

determination of justiciability. As the

district court stated, in Lindenau

v. Alexander, 663 F.2d 68 (10th

Cir. 1981), this court adopted the

two-step justiciability test set forth in

Mindes v. Seaman, 453 F.2d 197, 201-02

(Sth Cir. 1971). The first step requires

that "a court should not review internal

military affairs in the absence of (a) an

allegation of the deprivation of a

constitutional right, or an allegation

that the military has acted in violation

)

of applicable statutes or its own

regulations, and (b) exhaustion of

available intraservice corrective

measures." Id. at 201. Recognizing that

not all such allegations are reviewable,

Mindes requires at the second step a

weighing of the following factors: (1)

"[t]Jhe nature and strength of the

plaintiff's challenge to the military

determination[;]" (2) "[t]he potential

injury to the plaintiff if review is

refused[;]" (3) "[t]he type and degree of

anticipated interference with the

military function[;]" and (4) "“[tJhe

extent to which the exercise of military

expertise or discretion is involved."

Id.

The district court questioned the

viability of the Mindes test in light of

the Supreme Court's holding in Darby

v. Cisneros, 509 U.S. 137, 138, 153, 154

(1993), that plaintiffs are not required

to exhaust administrative remedies before

seeking review under the APA where no

statute or agency rule requires

exhaustion before judicial review.

Exhaustion, however, is not an issue in

this case, as it is undisputed that

plaintiff has exhausted military

remedies.

Regardless of exhaustion, the

district court declined to apply any part

of Mindes and proceeded to review

the merits of the case. In doing so, the

district court noted there was no Supreme

Court precedent for excepting the

military from all judicial review under

the APA, the APA expressly includes

Claims of constitutional violations

within its scope of review, Supreme Court

authority permits deferential judicial

review of constitutional challenges to

military actions, and such a case would

not be precluded from review under

traditional political question doctrine.

We conclude the district court erred

in refusing to apply the Mindes test. At

no time has this court overruled Lindenau

or rejected application of the Mindes

test. See Clark v. Widnall, 51 F.3d 917,

921 (10th Cir. 1995) (recognizing

Lindenau's adoption of four-part

second-step test of Mindes); Costner

v. Oklahoma Army Nat'l Guard, 833 F.2d

905, 907 (10th Cir. 1987) (recognizing

adoption of Mindes); Rich v. Secretary of

the Army, 735 F.2d 1220, 1225 n.3 (10th

Cir. 1984) (same). Accordingly, the

Mindes test still applies to "insure[ ]

that judicial intrusions into military

matters are limited to the vindication of

federal interests." See Watkins

v. United States Army, 875 F.2d 699, 736

(9th Cir. 1989) (Hall, J., dissenting).

In this case, plaintiff alleged a

vilation of his First Amendment rights

and exhausted any administrative

remedies. [n.2 We need not reach the

question of the viability of the

exhaustion component of the first step of

the Mindes test in light of Darby because

there is no issue of failure to exhaust

in this case. We do note, as did the

district court, that other courts have no

longer required exhaustion in military

cases due to the holding in Darby. See,

e.g., Dowds v. Clinton, 18 F.3d 953, 1994

WL 85040, at **1 (D.C. Cir. 1994)

(table); St. Clair v. Secretary of the

Navy, 970 F. Supp. 645, 647-48

(C.D. Ill. 1997); Perez v. United States,

@50 F. Supp. 1354, 1359-61

(N.D. I1l. 1994).] Thus, he met the

first step of the Mindes test. In

weighing the four factors in the second

step, we conclude as a matter of law that

plaintiff's claims are of the type which

are reviewable on their merits. [n.3 The

Air Force does not argue that this case

is not justiciable. We conclude it has

waived the issue and has conceded

justiciability.] See Rich, 735 F.2d at

1225 n.3, 1228-29 (concluding case was

justiciable where First Amendment claim,

among other claims, was raised); see also

Goldman v. Weinberger, 475 U.S. 503

(1986) (reviewing First Amendment

challenge to Air Force dress code

regulation); Brown v. Glines, 444

U.S. 348 (1980) (reviewing First

Amendment challenge to Air Force

regulation regarding circulating

petitions); Ogden v. United States, 758

F.2d 1168, 1179 n.7 (7th Cir. 1985)

(recognizing that application of Mindes

test to circumstances of Goldman clearly

indicates judicial review was appropriate

in that case; determining that

because First Amendment rights were

raised, review was proper under Mindes

analysis); St. Clair v. Secretary of the

Navy, 970 F. Supp. 645, 648

(C.D. Ill. 1997) (holding First Amendment

Claims fall within scope of judicial

review). But _see Khalsa v. Weinberger,

779 F.2d 1393, 1398-1400 (9th Cir.)

(rejecting First Amendment challenge to

Army appearance regulation under Mindes

second step.) aff'd, 787 F.2d 1288 (9th

Cir. 1985) (affirming prior decision and

noting Goldman was decided in circuit

rejecting Mindes).

On appeal, plaintiff argues the Air

Force improperly put his duty as an

officer ahead of his duty to the church.

Plaintiff contends that his removal from

a lM i i i ei at ak a) te ie

the pulpit after writing the letter to

the newspaper editor was the event from

which all else eminates. Although

plaintiff recognizes that the Air Force

may discipline him for engaging in

unauthorized political activity, he

maintains that removal from the pulpit

enters a "religious dimension," violating

his First Amendment rights. Appellant's

Br. at 26-27. Furthermore, he argues

that by removing him from the pulpit

after he wrote the letter, the Air Force

determined the content of sermons,

avoided presentation of sensitive issues,

determined the religious needs of the Air

Force congregation were different from

those of other congregations, and

promoted a philosophy to enhance the

national spirit prevalent at the time.

Likewise, when he was removed from the

preaching schedule after the Thanksgiving

Service, he believes the Air Force abused

its authority and improperly disciplined

him for an allegedly inappropriate

focus. Because he continued to be

endorsed for preaching by his

denomination, he believes that his

ministry was not inappropriate.

Accordingly, plaintiff argues that the

Air Force improperly determines religious

content in violation of the First

Amendment.

The district court rejected these

arguments. Initially, the court

recognized the need for deference when

considering constitutional challenge to

military decisions. The court further

recognized that although plaintiff

sincerely believed that the war he

opposed would be morally unjust, this

sincerity did not require accommodation

by the Air Force, which viewed any moral

objection as political under its rules.

The district court found no

constitutional violation pertaining to

the Air Force's actions in censuring

plaintiff's criticism of the Persian Gulf

War in his capacity as an Air Force

officer; rather, the court found that the

Air Force was enforcing neutral,

legitimate and significant interests

which defeat challenge under the First

Amendment.

Additionally, plaintiff's status as

an Air Force chaplain did not alter the

district court's finding. Noting that a

chaplain is a member of both military and

religious denomination institutions, the

court recognized serious implication of

the Establishment Clause principles of

excessive entanglement and lack of

neutrality in the military administration

of chaplaincy programs. Nonetheless, the

district court determined the Air Force

had neutral reasons for its actions.

Thus, as to plaintiff's constitutionally

based request under the APA to set aside

the decision denying him reinstatement

and expungement of his performance

reviews, the district court concluded

"that the conflict between the Air Force

and [plaintiff] as an Air Force chaplain

does not establish a constitutional

violation of the religion clauses." R.,

vol. I, tab 13 at 39.

We have examined the record and

relevant case law. After doing so, we

conclude the district court thoroughly

considered and correctly rejected

plaintiff's First Amendment arguments on

their merits in its order filed August

“8, 1997. Seeing no reversible error,

accordingly, we affirm for substantially

the reasons stated by the district court.

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Plaintiff's argument that he is not

barred from bringing suit under the FTCA

is not properly before us as plaintiff

did not raise any FTCA claims in the

district court. See Walker v. Mather (In

re Walker), 959 F.2d 894, 896 (10th Cir.

1992)(holding court of appeals generally

does not consider issues not first raised

in district court). Plaintiff brought the

underlying action under only the APA, not

the FTCA, and sought judicial review only

of the refusal to remove unfavorable

reviews from his records and the denial

of reinstatement.

AFFIRMED. Plaintiff's request for

Oral argument is DENIED. The mandate

shall issue forthwith.

Entered for the Court

Mary Beck Briscoe

Circuit Judge

esc i tae Ain hc sims

APPENDIX B --— OPINION OF THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

FILED AUGUST 28, 1997

GARLAND L. ROBERTSON, Plaintiff

Vv.

United States, Defendant

Case No. 96-C-888-B

ORDER

Before the Court are Plaintiff

Garland Robertson's ("Robertson") Motion

for Summary Judgment (Docket #2), and

Defendant United States' Motion for

Summary Judgment (Docket #5). On

September 27, 1996, Robertson, a former

chaplain and lieutenant colonel in the

United States Air Force, filed a

complaint under the Administrative

Procedure Act ("APA"), 5 U.S.C.A. § 701

et seq. Robertson alleges that the Air

Force's punitive actions against him for

questioning the need to use military

force in response to Saddam Hussein's

military offensive against Kuwait

effectively destroy the pluralistic

religious witness upon which the

constitutionality of the military

chaplaincy depends, and thereby promote a

"military" religion. Robertson seeks

summary judgment that the Air Force's

actions against him violate the Free

Exercise and Establishment clauses of the

First Amendment and Air Force Regulation

("AFR") 265-1. The United States

responds and cross moves for summary

judgment asserting that Robertson's APA

Claim is barred by the doctrine of res

judicata; this Court lacks subject matter

jurisdiction over any claim for

compensatory damages; and the decision of

the Air Force Board for Correction of

Military Records ("AFBCMR") regarding the

actions taken against Robertson should be

affirmed.

A.- BACKGROUND

Plaintiff entered the Air Force as a

pilot, serving in Vietnam from May 1969

until 1970, and continuing to serve as a

pilot until 1975 when he left the Air

Force to attend the seminary. In 1982,

he returned to the Air Force as a

commissioned officer in the service of

the chaplaincy. On January 5, 1991,

prior to Operation Desert Storm,

Plaintiff submitted the following letter

to the editor of a local newspaper in

Abilene, Texas:

The impression which Vice President

Quayle has communicated to the American

Soldiers in Saudi Arabia cannot go

unchallenged. His comment, "The

American people are behind you," must

be clarified to indicate that the

American people are not united in their

decision to support a military

offensive against the aggression of

Saddam Hussein in Kuwait.

While the human rights violations

committed by the Iraqis against the

people of Kuwait are atrocious,

unfortunately these violations are not

exceptions to human rights abuses

elsewhere in the world. Our presence

in the Persian Gulf region has to do

with economic issues primarily.

SUE WET alt Vad ee) Ue er Orme en de

thea ie eee Bd ie ie ee tet bene he lit ie SD

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I have written 25 members of the

Armed Services committees in

Washington, and their responses reveal

a substantial number of Americans,

; including government officials of

distinction, oppose the U.S.-led

forceful expulsion of the Iraqis from

Kuwait. Other options are available

which many believe are more sensitive

. to the best interest of the world

j community.

; If President Bush remains adament

about using force to drive Iraq from

Kuwait, the American soldiers will

respond with the full measure of their

capabilities - they are servants

committed to defend the national

interests of the people to whom they

have entrusted their lives. The need

to use military force in this

circumstance, however, is an open issue

- one which the citizens of this

country will not allow to be decided in

the vacuum of sectarian perception.

Government's Exhibit A. [n.1 All exhibits

identified as "Government Exhibits" are

attached to the government's motion for

summary judgment in Case

No. 95-C-1135-B.] Robertson signed the

letter as "Garland L. Robertson,

Chaplain, Dyess Air Force Base." Id.

On January 8, 1991, Colonel Michael

A. Lock ("Lock"), Commander of the 96th

Combat Support Group reprimanded

Robertson for the letter stating in part

"TI have no objection to your expressing

your political opinions in letters to

congressmen or in a letter to the

editor. However, when you add your

military title and unit of assignment to

a published letter you are violating AFR

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= Ma a a a a eA

110-2, which is titled "Political

Activities of Members of the Air Force."

Government's Exhibit B. Lock noted that

commenting on Operation Desert Shield is

a political activity and questioning the

President's use of force flouts military

authority. Id. Robertson responded to

— the letter of reprimand by distinguishing

his letter as one written by a military

pastor and borne from ethical and moral,

not political, concerns. He explained

that he perceived his responsibility as

military chaplain to assist soldiers in

Clarfying and evaluating the issue of

whether the Iragi conflict was a "just

war":

The situation in the Middle East is

indeed difficult, complex, and

dangerous. Iraq's aggression should

not be tolerated. War, however, is an

ancient, uncivilized way to resolve

conflict. Whether persons are violated

by jagged spears of 20MM cannons, war

is barbaric and unable to produce

equitable solutions for differences.

Yet war may be the only alternative for

safeguarding human life and checking an

otherwise irreducible aggressor. In

the Persian Gulf region, war is not the

only alternative for reducing Iraq.

Therefore, this war is immoral - it is

not a just war. My duty requires that

I make a moral judgment. No one is

bound by my conclusion. How you decide

is not my responsibility, nor will it

embarrass me. I will affirm your

decision.

Government's Exhibit C.

In May 1991 Robertson recieved the

first of a series of unfavorable Officer

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Performance Reports ("OPR"), for the

period April 1, 1990 until March 31,

1991, in which he was rated as "Does Not

Meet Standards" in the area of

"Leadership Skills," by the Installation

Staff Chaplain, Lieutenant Colonel Robert

S. Leeds ("Leeds"). Government's Exhibit

D. As the Additional Rater in the OPR,

Lock remarked that Robertson's "scheduled

TDY to support Desert Storm casualties

was withdrawn because of questionable

capabilities," and recommended that

Robertson be removed from the Air Force

chaplaincy as "he is not earning his

pay." Id. Robertson filed an application

to the AFBCMR to declare the OPR void,

which the AFBCMR denied. In reference to

the letter, the AFBCMR wrote

We do not disagree that [Robertson] has

an absolute right to express his own

personal views; his error, however,

occurred when he indicated his base and

official title and targeted a statement

by the Vice President. In so doing, he

removed himself from the realm of a

concerned citizen and represented

himself as an Air Force officer

expressing a partisn viewpoint. While

the applicant justifies his actions as

pastoral in nature, as a military --

and the key word is "military" --

chaplain, he is, in fact, bound by the

same rules of conduct as other

individuals in the Armed Forces.

Government's Exhibit O.

On May 19, 1991, in a sermon to his

congregation on "The Divine Wisdom Within

You", Robertson referenced the actions

taken against him:

My senior commanders as well as my

immediate supervisor are of the opinion

that my contribution to the well-being

of this community is less than

expected. They believe my presence is

a negative influence; they believe my

function as a chaplain has been

disruptive, a service which has neither

been appreciated nor desired. My

career will be adjusted according to

their evaluations. The issue has moved

beyond the boundaries of Dyess AFB.

Efforts to reassign me have been

complicated because senior leaders on

other bases refuse to accept me as a

part of their staffs. Some of you also

know of consequences which are the

result of personal commitment to the

wisdom communicated by the divine

spirit.

Government's Exhibit E. On May 20, 1991,

Leeds responded to Robertson's sermon

with a Letter of Counseling noting that

"[u]Jsing the worship service to present

your personal position on staff and

chaplaincy matters represents poor

judgment on your part and will not be

tolerated in the future." Id.

In December of 1991, Chaplain Colonel

James T. Elwell, who had replaced Leeds

as Installation Staff Chaplain, ordered

Robertson to undergo a commander directed

psychological evaluation by Captain

Marlin K. Moore ("Moore"), Chief

Psychological Services at Dyess AFB.

Moore issued his report on February 6,

1992 on his psychological evaluation of

Robertson. Moore's diagnosis identified

an occupation problem and concluded that

Robertson's psychiatric profile was S-1l

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and fully qualified for world wide duty.

Moore determined that Robertson's

"problems appear to have begun when he

arrived at Dyess" and noted specific

conflicts with Leeds and Elwell,

including their disapproval over

Robertson's letter to the editor. In

summary, Moore noted that Robertson

“appears to be psychologically intact

with no evidence of significant past or

present pathology," but that

{[hJis superior intellect and his

self-assurance create problems for him

in his job because he often convinces

himself that he knows of a better way

to do the task at hand. When

Ch. Robertson believes he is correct in

his beliefs about important matters he

will tend to stand his ground even if

this requires him to "fall on his

sword." While others might interpret

this as his being stubborn, I believe

his behaviors more closely resemble

those of the Old Testament prophets.

Unfortunately, then, like now, prophets

are often not highly esteemed,

especially when their views do not fit

into the mainstream of an authoritarian

environment such as the military.

Government's Exhibit F. In conclusion,

Moore recommended that Robertson be

removed from the Dyess Chapel Staff,

placed in a line position and retained in

the Air Force until eligible for

retirement; however, "[i]f such a job is

not available or if the commander

believes it is in the best interest of

the Air Force for Ch. Robertson to

separate, I recommend he be allowed to

apply for one of the exit bonus programs

rather than face separation under AFR

36-2." Id. - |

On February 7, 1992, Robertson filed

a Charge of Institutional Discrimination

with the Air Force complaining that Air

Force policies and procedures deprived

him of the right to the free exercise of

religion in his duties as a chaplain.

Plaintiff's Exhibit to 96-C-888-B Summary

Judgment Motion. Robertson stated that

the Air Force took the following actions

as a result of the letter: (1) he was

removed from the base chapel's preaching

schedule for the duration of Operation

Desert Storm; (2) his scheduled temporary

duty "TDY" to staff a contingency

hospital in support of Operation Desert

Storm was canceled; (3) in March 1991, he

was assigned to Castle AFB in California,

but in April the base leadership refused

to accept him as part of its staff; and

(4) in April 1991 he was assigned to

Keesler AFB in Mississippi where he was

again refused a position. Plaintiff's

Exhibit to 96-C-888-B Summary Judgment

Motion.

In a Summary Report of Inquiry, the

Air Force concluded that the “actions

taken against Chaplain Robertson for his

numerous breaches in conduct and

substandard performance were both

measured and fair,"and not the result of

wrongful discrimination. Plaintiff's

Exhibit to 96-C-888-B Summary Judqment

Motion. In so concluding, the Air Force

found that (1) Robertson's “removal from

the preaching schedule appears to have

been largely a management decision to

avoid further indiscretions and conflict

between the chaplain and parishioners";

(2) Robertson's release from TDY in

January 1991 “was a direct result of the

reprimand he received for the previously

addressed violation of AFR 110-2 [the

letter to the editor]," and "{iJn light

of the nature of Chaplain Robertson's

breach of conduct, and his expressed view

on the use of US military force in the

Persian Gulf, it would have been

inappropriate to assign him to a

contingency hospital to minister to

service members who were injured as

result of armed conflict in the Gulf";

and (3) although Robertson was considered

and rejected for several assignments,

"(tJjJhe fact that Chaplain Robertson,

through his own actions, has rendered

himself unacceptable to other potential

Air Force units does not constitute

wrongful discrimination." Id.

In April 1992, Robertson received his

second unfavorable OPR: for the period of

April 1, 1991 through March 31, 1992

which again cited his leadership as below

standard. Government's Exhibit G. While

Elwell acknowledged Robertson's

organization and timely accomplishment of

assigned tasks, he remarked that

Robertson was not a team player and his

“attitude towerd authority and the Air

Force system has been one marked by

indifference to rebellion; at times, just

short of insubordination." Id.

Robertson took issue with the OPR in

his responding comments which include

inter alia the following: "because of

statements I had made on behalf of the

Christian churches in America regarding

moral objections to initiating a war

against Iraq in response to the Aug 90

crisis in the Middle East," and

"reference in a sermon to some of the

consequences I had experienced because of

my effort to apply the knowledge of faith

to life," he was suspended and then

removed from the preaching schedule, and

ordered to undergo a psychiatric

evaluation. Characterizing these

responses as an effort on the part of the

Air Force to promote "prevailing

preferences," Robertson concludes,

I am an ordained minister of the

Christian faith tradition. As such I

am compelled to represent my

interpretation of the spirit and the

teaching of this standard, both in what

I say and in what I do, whether the

opinion is popular of not. I will not

compromise the knowledge of faith I

have acquired in the progress of my

experience and training. I will not

appear to support a pattern of

community structure which does not

respect individual religious liberty.

If this orientation does not meet AF

standards for a chaplain leader, then

what does? The answer to this question

will say much about the role a chaplain

is expected to fulfill in the military

establishment. Servants of a

democratic god may be an accurate

description of the kind of ministers

the AF promotes. Id.

The Wing Commander, Colonel Johnny

Griffin, "carefully considered Ch

Robertson's comments to the OPR," and

acknowledged that Robertson's "job

performance [showed] a degree of

technical proficiency," but concurred

with Elwell's assessment that Robertson's

lack of teamwork and mission support has

been unacceptable." Id.

On July 10, 1992, Brigadier General

Jerrold P. Allen ("Allen") issued a

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Letter of Reprimand to Robertson for

disrespect and insubordination toward

Elwell. Allen reprimanded Robertson for

seeking someone to replace him for an

assigned chapel duty and for calling

Elwell's insistence on Robertson's

compliance with the order "childish."

Allen admonished Robertson that "[y]Jour

actions are but another incident in a

pattern of inappropriate and petty

behavior towards Colonel Elwell, fellow

officers, and this Wing. Your disrespect

has been detrimental to the chapel

staff's morale and this organization."

sovernment's Exhibit H.

On July 13, 1992, Robertson responded

by explaining that there had been a

misunderstanding, that he did not intend

to offend Elwell, and assuring that he

“will be extremely careful in the future

not only to avoid giving Ch Elwell the

impression that I disrespect his

supervisory authority over me but also to

guard my actions that they might not be

interpreted as being inappropriate

towards fellow officers and the Wing."

Id.

During that same month, Elwell

ordered Robertson to undergo another

directed psychiatric evaluation due to

the "continuing concern with Chaplain

Robertson's job performance and

personality issues that have resulted in

cumulatively adverse effects on the

Chapel mission, morale, and section team

work," and his belief that the "problems

and pattrns of behavior reflected in

previous reports seem to have

intensified." Government Exhibit I.

Robertson was interviewed and evaluated

by Richard D. Zenn ("Zenn"), Chief,

Psychiatric Services. In his September

2, 1992 report, Zenn noted that although

"there may not have been enough evidence

to make the diagnosis at Dr. Moore's

initial evaluation," Zenn concluded that

the "most accurate psychiatric diagnosis

of Chaplain Robertson is a Personality

Disorder Not Otherwise Specified with

narcissistic, obsessive-compulsive

traits, and passive-aggressive traits."

Finding that Robertson was fully

qualified for worldwide duty with no duty

restrictions, Zenn concurred with Moore's

original suggestion that Robertson be

assigned to a line position until

eligible for retirement. If Robertson's

personality style then continued to be a

problem, Zenn suggested that a decision

would have to be made as to whether to

separate Robertson under AFR 36-2. Id.

In April 1993, Elwell again evaluated

Robertson's leadership skills as below

standard, for the period of April 1, 1992

through March 31, 1993, noting that

Robertson's "{1lJong-term continuance job

and staff relationship difficulties has

led to repeated written evaluations by

mental health that identify an underlying

personality disorder that hinders his

duty performance." Government Exhibit

J. In response, Robertson objected that

Elwell's actions against him and those of

the leaders of the Chaplain Service were

intended to “isolate one who will not

promote a nationalistic spirit," and in

so doing, "the Chaplain Service has

betrayed the confidence of the American

Christian churches, and the AF has

betrayed the trust of a nation who has

pledged to protect the free exercise of

religion for all persons -- especially

those having minority opinions." Id.

Brigadier General Allen acting as both

nnn FA hai es i Kt

additional rater and reviewer concurred

with Elwell's assessment of:Robertson's

leadership and concluded that Robertson's

"performance makes him a liability to the

chaplaincy and the base mission." Id.

On March 23, 1993, at the time of

this evaluation, Elwell and Major Joseph

L. Heiman (Heiman), the Staff Judge

Advocate, informed Robertson that

Brig. Gen. Allen was considering an AFR

36-2 separation action against Robertson,

unless Robertson put in his paperwork for

retirement by mid-April 1993.

Plaintiff's Exhibit to 96-C-888-B Summary

Judgment Motion. Heiman told Robertson

that should an AFR 36-2 proceeding be

initiated, Robertson could lose all

retirement benefits, even if the appeal

took him beyond his 20 year retirement

date of Fedruary 1, 1994. Id.

At some point between this March 23rd

meeting and April 22, 1993, Robertson

declined to separate voluntarily. On

April 2, 1993, Elwell made a written

request for a third mental evaluation of

Robertson in which he concluded that a

"36-2 action is in order." Plaintiff's

Exhibit 11 to 95-C-1135-B Summary

Judgment Motion, p. 154. Moore conducted

the third mental evaluation. Government

Exhibit K. When Moore contacted

Robertson concerning the evaluation,

Robertson declined to meet with him but

provided him with written rebuttals and