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- Greetings Friends and Family,
This is an update in the Carmichael v. United States case.
I will give a brief summary of the issues and status of the case. Then I will give a report of the events of April 6-7 of 2004, as well as what I think will happen as the case progresses.
In 1995, while a Chief Petty Officer in the Navy, I made a religious accommodation request for the Navy to change the Military Personnel Identification Number (MPIN), that they had assigned to my service record, to be a Navy generated service number rather than the Social Security Number (SSN) which has come to be used universally as each person’s identification number. (Please forgive the run-on sentence.) It is based upon the Bible’s book of Revelation that admonishes to refrain from associating with a number that no man may buy or sell without. The Navy at one time had used a number other than the Social Security Number as each service member’s record identification number. I understood that the request might cost me my career which would otherwise end in retirement in just over three years. However, I was not resolved that a denial of my request was absolutely forthcoming. After all, the Social Security Administration told me that participation in Social Security is voluntary, and the I was serving my country to keep it one that is “free” (..will support and defend the Constitution of the United States against all enemies, foreign and domestic; and to bear true allegiance to the same). I had no objection to them having their own accounting number for their own record keeping purposes. What transpired when I submitted my request via the Executive Officer, to the Commanding Officer, for redress from higher authority is what brought me to the point of the current action in federal court.
What should have happened is, the Executive Officer XO must give me audience with the Commanding Officer (CO), after the XO arranges the time and place. The CO then must forward the request to the Chief of Naval Personnel (CNP) who had the authority to change the MPIN. There is a “Pseudo Social Security Number” available that can be issued by the CNP’s office of the Bureau of Naval Personnel for pay and other record keeping purposes in lieu of an SSN. For a request to higher authority, the CO submits it with a form where he is able to enter his comments or recommendations. His recommendations will be based upon certain factors that he uses to determine whether to grant the request depending on Military Necessity. The five factors are:
1) The importance of military requirements,. Including individual readiness, unit readiness, unit cohesion, health, safety, morale and discipline.
2) The religious importance of the accommodation to the requester.
3) The cumulative impact of repeated accommodations of a similar nature.
4) Alternative means available to meet the requested accommodation.
5) Previous treatment of the same or similar requests, including treatment of similar requests made for other than religious reasons.
In the event that the CO determines that the request over-burdens military necessity, he has to determine what action to take. The action must be in accordance with law and Navy regulation. Retaliation, denial of due process, falsifying records, and unlawful separation are not optional actions. In my case however, my request was never even considered by those who needed to consider it. Those who wrongfully took it upon themselves to consider it, without any lawful authority, did not even consider it by the relevant laws and regulations that applied. Besides being threatened, mocked, publicly ridiculed, and having my request kept from those who needed to consider it according to law, Navy regulation and reason, my Navy Commendation Medal recommendation somehow disappeared: my obligated service paperwork was deliberately miss-handled so it would wrongly appear that my term of service would conclude a year and ten months early; I was discharged with the false claim that it was voluntary; and I was prohibited from returning to the Navy because I did not fulfill the term of service that they otherwise did not properly document.
After my weird discharge, the reason I filed suit was not because I am a whiner. What happened certainly did not surprise me. However, I am fully aware of what should have happened in my case. I am aware that a whole slew of people totally forgot their oath and why we serve our country. We commit ourselves to service so that law will be upheld, by force if necessary, in order to secure the liberty of every American. What I experienced was anarchy that excluded the opportunity for law and justice to take their course. Because of my oath, I have a continuing obligation to uphold and defend the Constitution of the United States against all enemies, foreign and domestic. Domestic enemies are those within our system of government who use their office to subvert our system of government rather than to bear true faith and allegiance to the same. Because of my continuing obligation, not taking legal action would be a betrayal of my oath. There is much, much more to securing our liberty than fighting a war without. Lives lost elsewhere are lives wasted if each of us at home do not fulfill our duty.
After attempting administrative redress, I filed suit in the United States Court of Federal Claims on my own behalf (Pro Se). Not long afterward, Dr. Herb Titus, a man of God who is cleverly disguised as a litigator, came to my rescue and took up my case as my lawyer. However, the case was dismissed on the grounds that the Court of Federal Claims has no jurisdiction in voluntary separation cases. The court had to ignore my claim that the voluntary discharge statement on the discharge certificate was false. We appealed to the United States Court of Appeals for the Federal Circuit. The Court of Appeals vacated the decision and remanded the case back to the Court of Federal Claims to have a trial to test my claim of unlawful involuntary separation. The Court said that I needed to have the opportunity to prove: 1) whether the Navy failed to follow its own procedures considering my request for religious accommodation; 2) whether the failure directly caused my separation; 3) whether a reasonable employee under the same circumstance would feel coerced into resigning; 4) and whether the Navy can show that it would have taken the same action after following proper procedures. The burden is upon me to prove all of the first three items. The burden on the Navy is to prove the last item. We need to be successful on every point to prevail in the case. All of those things are issues of fact and they are very subjective. If the Court of Federal Claims Judge decides against me, it will be extremely difficult to successfully appeal such a decision.
When we got back to the Court of Federal Claims, we were shocked when the Judge came up with his own motion for dismissal in such a way that the Court of Appeals ruling would be moot. He said that the record showed that I had no right to continue service beyond the date of my discharge even if we proved it to be involuntary. None-the-less, we successfully proved to the Court that my service should have been extended for another year and ten months beyond my discharge date had it not been for the Navy’s shenanigans. Not long afterward, the Court gave the opinion that the record shows that I had fulfilled my burden of proof on all three things that were my responsibility. That was a great relief to us. Now, the Navy has a chance to prove that their failure to follow procedures had no bearing on the outcome and everything would be just the same as it turned out to be so far. That is a huge burden on them being that the facts cannot support it. The Judge recommended to the Navy that they settle the case, because he could not see anything in the record that would support such a position.
For whatever reason, the Navy has been just plain ruthless throughout this whole situation. The United States Attorney has flat-out lied to Judges in both courts. At first, it worked. Fortunately, the Court is starting to catch on and scrutinize the things that the U.S. Attorney says. Now though, the Navy has proposed a very weird defense. They want to have the Navy Officers tell us what they would have done had they followed proper procedures. They get a chance to make-believe what might have happened. It is all very convenient. All they have to do is come up with a plan that would make everything happen lawfully just the way it did unlawfully. They have the advantage of knowing exactly what they have to make up to sell the idea. Since it is all make believe, no one can prove them wrong. Herb strongly objected to the process. Never-the-less, that is the situation in which we find ourselves.
On April 6th and 7th, 2004, Herb Titus and I met with my ex-Commanding Officer, the Admiral that disapproved my request, the U.S. Attorney, the Navy Attorney and a court reporter in a deposition hearing.
The Commanding Officer admitted that:
1. He never saw my request.
2. He would have sought counsel from his staff, the chaplain, the legal services office, higher authority and other sources prior to coming to a decision.
3. He has not done any of those things yet.
4. Anything that he said he would have decided had he followed his procedures was nothing more than speculation.
5. Any decision he might have made would have been subject to appeal to higher authority.
The Admiral admitted that:
1. His staff did not give him all the information he needed to make a decision consistent with Secretary of the Navy procedural regulations.
2. He would have sought more information from his staff had he been given the Secretary of the Navy’s instructions regarding religious accommodation.
3. He would have sought input from my Commanding Officer.
4. He has not done any of those things yet.
5. Anything that he said he would have decided had he followed his procedures was nothing more than speculation.
6. Any decision he might have made would have been subject to appeal to higher authority.
Essentially, this is all very good news. It solidifies our case. The Navy cannot prove that it would have taken the same action after following proper procedures.
This case is very important. The Navy should not take its sailors that live to the highest standards and destroy them because they humbly make an appeal for a religious accommodation. They need to either approve it or disapprove it on the basis of the military necessity standards promulgated by the Secretary of the Navy. If the requester has the courage to make an appeal, knowing that it might cost their career, and has the fortitude to submit themselves to the governing authority of the Secretary of the Navy’s regulations, the Commanders and Commanding Officers ought to at least make an attempt to submit to those same regulations. It is very dangerous to our nation for its leaders to justify their throwing away the rules because someone makes a request based upon their religious convictions. Submission to God first is what will keep men accountable to submitting to the authority of regulations and orders, even to their hurt or loss of life. It is not good for the leaders to set an example of ignoring orders that they prefer to not obey.
We will proceed to have the Navy produce documents regarding their procedures and their handling of similar cases. Most likely, the Navy will keep digging in and dodging rather than squarely facing the issue. It has been a long, and difficult, though successful, road that we have traveled thus far. The future road looks to be just as long and difficult. To date, our physical (financial) resources are totally depleted. However, we must press on. Keep the faith!
Sincerely,
David Alan
Carmichael