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Members of a religious class-action suit against the Navy are calling on Congress to repeal a federal law that many believe blocks complaints of mass discrimination.

The law requires officers to appeal a denial of promotion to the secretary of their service before filing anything in court. The suing naval chaplains say the law ties the hands of judges, allowing military selection boards to promote — or sack — officers based on whim. A judge who thinks an officer was shafted can only force a military review.

“The way I feel about it is this: Instead of making roadblocks for people to know that their boards were fair, make the system fair,” said James Weibling, a retired Southern Baptist chaplain previously assigned to Naples, Italy. The Texan fears that without complete court review of promotions, the military “can have an unwritten policy that you can never uncover.”

Weibling is one of a group of evangelicals who claim that the Navy Chaplain Corps favors Roman Catholic and mainline Protestant chaplains when it comes to promotions. The Navy denies the charge, and that case is still pending.

Weibling and others the law keeps any systematic bias in promotions unexposed — whether it be religious, racial or anything else. Attorneys also dislike the law, as they claim it tries to deal with complaints one at a time, rather than en masse.

“The statute, in effect, appears to attempt to bar class-action suits,” said Barry Steinberg, a lawyer and retired colonel who once headed the litigation division of the Army’s JAG Corps.

The Pentagon denies the law blocks class-action suits, but admits the route will be less attractive to those with complaints. Judges can no longer award money or anything else. According to a Pentagon statement, the law was designed to provide “an informal and inexpensive” means of contesting promotion decisions, and to make sure the final say over its personnel is had by the executive branch — rather than by the gavel.

One former Army JAG officer called it a typical maneuver.

“The services try to keep servicemembers from challenging anything in court — ever,” said Christopher Sterbenz, now a Vienna, Va.-based lawyer.

Law’s return

The current version of the law was signed as part of the Defense Authorization Act for 2002.

The military had tried to promote a stricter version , only to be routed by the lobbying of former officers. The earlier draft floated for 2001 would have defused all class-action suits — including several pending at the time. And unlike today’s law, that bill included no limit to how long a secretary could take before responding to complaints.

Weibling and his chaplains begged for press: The 700 to 1,300 evangelicals now in their class would have been barred from suing.

“While we’re backed up in court, they’re working the other end trying to make our lawsuit moot,” Weibling said.

The American Bar Association, too, fought the bill. Steinberg lobbied against it.

So did Frank Christian, an Army lieutenant colonel forced into retirement in 1992. Christian, now living in Georgia, believed he was illegally booted because the Army favored women and minorities when it came time to downsize. He had been an inspector general during a tour in Darmstadt, Germany, and later completed law school just to fight his forced retirement.

“My mother,” he remembered, “said I was born to argue.”

Christian has since won that case, along with nearly 900 other Army officers forced out of service the same year. They now await an award.

Christian also wrote letters to every member of the Senate begging them to cut the section of defense bill that would have made his labors futile. Other officers wrote several thousand letters.

“When you’re fighting the king,” Christian quipped, “it’s hard to win.”

Congress listened. It yanked the section from the defense bill. The axed officers rejoiced.

The evangelicals, then, were amazed last July when the Navy tried to bar their attempt to add more chaplains to their complaint — since the new guys hadn’t appealed to the secretary, the service said, they couldn’t sue.

The Navy invoked the same rule the officers thought they had torpedoed.

The military had, it turned out, inserted a similar section into the Senate version of 2002’s defense bill. Though the new version was toned down — it was no longer retroactive — the law survived.

But the realization of Title 10, Chapter 79, Section 1558 of U.S. Code shocked those who thought they had slain it as a bill. And they found its byzantine language confusing.

“The law is murky,” complained Cmdr. Furniss Harkness, an evangelical chaplain in the Naval Reserve living in Memphis, Tenn.

How high is the hurdle?

Though it appears to gag judges, even critics admit it can speed up the military’s own complaint system.

Under the current law, Steinberg was able to get a passed-over client promoted to full colonel in just six months. That’s also the maximum time a secretary has to review an appeal before an officer sues.

Suing Oklahoma chaplain Ron Wilkins believes that since the new law demands the military review complaints within a given time, it can in theory deal out swift justice.

“In essence, you will have your answer in six months, which is fair,” Wilkins said.

But he wonders whether the military can be trusted to police itself.

Congressional notes also say lawmakers did not intend to take away power from courts, or to block class-action suits. But no mention of sparing class actions appears in the final law.

Christian, now a lawyer himself, said that whatever it does for internal complaints, the law makes it more difficult for an officer to sue and win.

Though the law is too new to stop their class action, Weibling and his chaplains see writing letters to Congress as a means of revoking the law for other officers.

“We want a fair policy from here on out,” Weibling said.

Barring a successful siege by the chaplains, the law’s intricate wiring will be left for courts to untangle.

In any case, Sterbenz said that the Constitution still trumps legislation — and that’s likely the weapon wronged officers will try to wield in the future.

“I don’t think that when someone puts on a uniform, they give up all their rights,” Sterbenz said.

“The Constitution doesn’t stop at the barracks door.”

Read about the Navy chaplains’ class action suit at: www.chaplainclassaction.com. Read about the lawsuit that challenged Army affirmative action policies at: www.armyserbclassaction.com. Research the section of U.S. Code dealing with the military at: www4.law.cornell.edu/uscode/10/


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