As a follow up to yesterday’s post on the Religious Freedom Restoration Act, I wanted to share a little bit about military policy regarding religious freedom and the accommodation of religious practices.
When I entered the Army, the Department of Defense was operating under the 1988 version of DOD Directive 1300.17: “Accommodation of Religious Practices Within the Military Services.”
The directive contained one paragraph that outlined the basic policy.
3.1. A basic principle of our nation is free exercise of religion. The Department of Defense places a high value on the rights of members of the Armed Forces to observe the tenets of their respective religions. It is DoD policy that requests for accommodation of religious practices should be approved by commanders when accommodation will not have an adverse impact on military readiness, unit cohesion, standards, or discipline.
The remainder of the document described implementation of the policy and gave specific guidance in cases related to religious observances, dietary requirements, medical requirements, uniform standards and grooming standards. In theory, however, accommodation was not limited to these areas. Commanders were to grant requests for accommodation when they would not have an adverse impact on military readiness, unit cohesion, standards or discipline.
In the Army, these were concerns were commonly lumped together under the banner of “military necessity.” You’ll notice that phrase in the “Statement of Understanding” that every Soldier signs prior to entering the Army.
The Army places a high value on the rights of its members to observe the tenets of their respective religions. It is the policy of the Army that requests for accommodation of religious practices should be approved when accommodation will not have an adverse impact on military readiness, unit cohesion, standards, health, safety, or discipline. However, accommodation of a soldier’s religious practices cannot be guaranteed at all times but must depend on military necessity.
The language reflects the wording of paragraph 5-6 of Army Regulation 600-20 (Army Command Policy) which outlines how the Army applies Department of Defense policy.
The most recent revision (2014) of DODD 1300.17 is longer and incorporates language from the 1993 Religious Freedom Restoration Act and the 2014 National Defense Authorization Act.
4. POLICY. It is DoD policy that:
a. The DoD places a high value on the rights of members of the Military Services to observe the tenets of their respective religions or to observe no religion at all. It protects the civil liberties of its personnel and the public to the greatest extent possible, consistent with its military requirements, in accordance with DoD Instruction (DoDI) 1000.29.
b. In accordance with section 533(a)(1) of Public Law 112-239 as amended, 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 (conscience, moral principles, or religious beliefs) of Service members in accordance with the policies and procedures in this instruction. This does not preclude disciplinary or administrative action for conduct by a Service member requesting religious accommodation that is proscribed by Chapter 47 of Title 10, United States Code (the Uniform Code of Military Justice), including actions and speech that threaten good order and discipline.
c. DoD has a compelling government interest in mission accomplishment, including the elements of mission accomplishment such as military readiness, unit cohesion, good order, discipline, health, and safety, on both the individual and unit levels. An essential part of unit cohesion is establishing and maintaining uniform military grooming and appearance standards.
d. In so far as practicable, a Service member’s expression of sincerely held beliefs (conscience, moral principles, or religious beliefs) may not be used as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.
e. Requests for religious accommodation will be resolved in a timely manner and will be approved when accommodation would not adversely affect mission accomplishment, including military readiness, unit cohesion, good order, discipline, health and safety, or any other military requirement. For requests for religious accommodation when accommodation would adversely affect mission accomplishment:
(1) In accordance with section 2000bb-1 of Title 42, United States Code (Reference (e)), requests for religious accommodation from a military policy, practice, or duty that substantially burdens a Service member’s exercise of religion may be denied only when the military policy, practice, or duty:
(a) Furthers a compelling governmental interest.
(b) Is the least restrictive means of furthering that compelling governmental interest.
(2) Requests for religious accommodation from a military policy, practice, or duty that does not substantially burden a Service member’s exercise of religion should not be evaluated under the standard established in paragraph 4e(1). Under these circumstances, the needs of the requesting Service member are balanced against the needs of mission accomplishment. Only if it is determined that the needs of mission accomplishment outweigh the needs of the Service member may the request be denied.
Service members are required to comply with the policies, practices and duties to which they are requesting an exemption until they receive approval.
In making their decisions, commanders are directed to consider at least the following factors:
a. The importance of military requirements in terms of mission accomplishment, including military readiness, unit cohesion, good order, standards, and discipline, health, and safety.
b. The religious importance of the accommodation to the requester.
c. The cumulative impact of repeated accommodations of a similar nature.
d. Alternative means available to meet the requested accommodation.
e. Previous treatment of the same or similar requests, including treatment of similar requests made for other than religious reasons.
Every decision is both unique and subject to change as conditions change.
i. All requests for accommodation of religious practices will be assessed on a case-by-case basis. Each request must be considered based on its unique facts; the nature of the requested religious accommodation; the effect of approval or denial on the Service member’s exercise of religion; and the effect of approval or denial on mission accomplishment, including unit cohesion.
j. Service members whose requests for accommodation of religious practices are approved will be informed of the specific elements of that approval. Specific elements will include that such approval does not apply for their entire military service commitment and that, at the discretion of the Secretary concerned, new requests for the same accommodation are necessary upon new assignment, transfer of duty stations, or other significant change in circumstances, including deployment.
As previously stated, the Army implements DODD 1300.17 in section 5-6 of Army Regulation 600-20 (Army Command Policy). That regulation gives commanders the authority to approve or disapprove most requests locally, but it also gives Soldiers the right to appeal through the various levels of command all the way to the Department of the Army. Approval of the request at any echelon of command settles the matter. If the appeal reaches the Department of the Army and it is still denied, the Soldier may request separation under the appropriate regulatory authority.
The appeal packet will include a memorandum outlining the nature of the accommodation requested, the religious basis for the request, and a formal recommendation of approval or disapproval by commanders who review the packet. The packet will also contain a legal review and a memorandum from a chaplain. The Soldier may also include statements from his or her peers, religious officials of the Soldier’s faith group, copies of religious writings with bearing on the Soldier’s request, documents related to the Soldier’s service and a more detailed statement from the Soldier explaining the request in more detail.
The chaplain’s memorandum will be based on an interview with the Soldier concerning the request for accommodation. Since the purpose of the interview is to produce a report for the commander, the interview is not counseling and the session is not privileged. If the Soldier already has established a confidential counseling relationship with the unit chaplain, a different chaplain will conduct the interview. The interviewing chaplain’s job is to help the commander understand the religious basis of the requested accommodation, its importance to the requester and the sincerity of the request. The interviewing chaplain is not required to recommend approval or disapproval, but may do so if desired. The Soldier can also include letters from other chaplains in the appeal packet, but these letters do not fulfill the requirement for a formal chaplain interview.
All of this is “Religious Accommodation 101” for chaplains. We learn it in the basic chaplain officer course before we ever enter our first assignments.