A former master sergeant in the Army Band who claims service officials forced him into retirement because of expressions of his Christian faith and conservative opinions says he plans to appeal after an adverse ruling in his case.
The U.S. Court of Federal Claims published a ruling Tuesday in favor of a government motion to dismiss the case brought by Nathan Sommers, saying that, because he'd chosen retirement over separation from the military, the move was not involuntary.
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Sommers, whose lawsuit made national headlines when he filed it in 2014, claimed that his display of anti-Obama bumper stickers on his car, reading a book by conservative talk-show host Rush Limbaugh before a performance, and pointedly serving Chick-fil-A sandwiches at a promotion party "in honor of the repeal of Don't Ask, Don't Tell" all served to turn his unit against him and precipitated the end of his Army career.
He served in the Air Force from 1988 to 1997, joined the Army immediately after his honorable discharge, and took a position in the Army Band as a tenor soloist. He was promoted to master sergeant on Sept. 1, 2012. That same month, according to the court opinion, he posted two Twitter messages mentioning Don't Ask, Don't Tell, the policy prohibiting gay troops from serving openly that was repealed in 2011, and his decision to serve Chick-fil-A.
"In honor of DADT repeal, and Obama/Holder's refusal to enforce DOMA act, I'm serving Chick-fil-A at my MSG promo reception for Army today," he tweeted in one message, referencing then-President Barack Obama, former U.S. Attorney General Eric Holder, and the federal Defense of Marriage Act, which would later be ruled unconstitutional by the U.S. Supreme Court.
While the fast food chain's owners never weighed in on Don't Ask Don't Tell, Chick-fil-A COO Dan Cathy made public statements in 2012 in opposition of same-sex marriage, leading to controversy and boycotts.
In October 2012, according to court papers, Sommers was counseled by his chain of command against political activity while in uniform, and his commanding officer, Col. Thomas Palmatier, initiated a fact-finding investigation.
Continued tension between Sommers and his chain of command culminated in non-judicial punishment proceedings on June 7, 2013, on the grounds that he had inappropriately traveled while on convalescent leave status. While Sommers disputed the claim, he was found guilty and punished.
In May of that year, he also got a poor enlisted performance review that stated, among other things, that he "demonstrated difficulty accepting correction from his leadership and taking responsibility for his own actions;" "demonstrated limited potential for positions of greater rank and responsibility;" and "did not treat people as they should be treated."
Sommers claims it was the first substandard review of his military career.
Less than a year later, on Feb. 7, 2014, under the Army's Qualitative Management Program, he was notified that he had a choice: to accept discharge by Aug. 1; request voluntary retirement with benefits; or appeal and request to be retained. Sommers' appeal was denied on March 26, and he elected to retire on the last day before his discharge deadline, July 31.
"The issue has to do with whether or not Master Sgt. Sommers voluntarily retired," Sommers' attorney, John Wells of the legal group Military Veterans Advocacy Inc., told Military.com. "He did not accept retirement until the last day. That's no real decision; he fought it until the last minute of the last day."
The court disagreed, however. Delivering the opinion, Judge Richard Hertling said Sommers had not exhausted the options available to him before choosing retirement to preserve his military benefits.
"The plaintiff took and continues to take issue with both his evaluation and his nonjudicial punishment, the factors that the plaintiff alleges informed the [Qualitative Management Program] decision," Hertling wrote. "The plaintiff could have continued to pursue avenues of administrative relief. He could have brought his complaints with both the evaluation and the non-judicial punishment, and with the QMP determination itself, before this Court had he accepted a discharge. He might have prevailed, but there was risk in such an approach. He decided to retire. He had that option on account of his many years of distinguished service."
Wells said he plans to take the case to the Court of Appeals for the Federal Circuit for another look.
"I think it probably needs to be decided at the appellate level," he said.
He added that he believed the actions taken against Sommers were an "obvious" attempt to target him for his views.
"It was a setup by a clique within the Army Band who disagreed with his political and religious beliefs," he said. "We watched it unfold, knew exactly what was going to happen, and it did."
-- Hope Hodge Seck can be reached at hope.seck@military.com. Follow her on Twitter at @HopeSeck.
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