Ryan Berry v. U.S. Air Force

Captain Ryan Berry is a 1996 West Point graduate who was trained as a Minuteman II missileer and assigned to Minot Air Force base in May, 1997. Upon his arrival he learned that he might be paired with a female officer for missile alerts. Missile alerts entail going into an isolated underground missile control center for periods of 24 to 48 hours. The underground control center is very small, with room for equipment, a little bit of room to move around, a cot for one officer to sleep while the other monitors the controls, and a toilet separated by a curtain. Officers are paired with the same partner for as long as nine months.

Then-Lieutenant Berry is Roman Catholic and is married. He was concerned that being in tight quarters such as this for extended periods of time presented him with an "occasion of sin" which his Catholic faith requires him to avoid: he was concerned that this situation could lead to inappropriate feelings of a sexual nature, or could lead to strong emotional feelings for his partner over time that might interfere with his relationship with his wife.

Lt. Berry, with the support of his chaplain, sought and was granted a religious accommodation, in accordance with DOD directive 1300.17, under which his Squadron Commander agreed that Ryan would not be scheduled to serve missile alert duty with female officers. When he was transferred to a different Squadron, he requested and was granted a continued accommodation of his religious beliefs.

On December 8, 1998, Operations Group Commander Col. Stephen Cullen notified Lt. Berry that his religious accommodation was being revoked: He wrote: "Previous accommodation of your religious practice, of not serving with a female missile crew member, has had an adverse impact on good order, discipline and morale of the group." After the accommodation was revoked, in the normal course of scheduling, Lt. Berry was never scheduled for alert duty with a female officer.

After the accommodation was revoked, Lt. Berry faced a crisis of conscience regarding the conflict between his faith and his duties to the military and was experiencing considerable stress over the revocation of his religious accommodation. He reported this crisis of conscience on December 9 to the Lt. Col. Blalock, who was in charge of the Personnel Reliability Program (the PRP). In order to ensure that those dealing with nuclear weapons have no distractions, missileers are required under Air Force regulations to report anything–ranging from financial or marital problems to illness or death in their family–that might be distracting in any way to their performance of their duties. As a result, Blalock immediately decertified Lt. Berry under the PRP program and he was transferred to a position as supervisor of a training module.

Lt. Berry was subsequently punished for seeking and obtaining an accommodation for his religious beliefs in his Officer Performance Report dated April 11, 1999. While his OPR raters gave him excellent ratings ("One of my best"; "loaded with potential" "heap it on him–he can handle it. Talented officer, boundless potential; will succeed in whatever he does"), the OPR reviewer, Commander Ronald J. Haeckel, gave Lt. Berry a failing score for "Professionalism" and added to the OPR: "Refuses to accept personal responsibilities of a missile combat crew member," and "will not perform duties with fully qualified female officers," neither of which was true.

Lt. Berry filed objections to the OPR with Major General Thomas Neary. Archbishop O'Brien, then the Archbishop of the Archdiocese for the Military Services, wrote to General Neary on June 23, 1999, supporting Lt. Berry. On July 30, 1999, General Neary submitted an evaluation of the OPR on July 30, 1999 stating that he agreed with the unprofessional rating and the first line of commentary. However, he stated that he disagreed with the second and third lines.

Lt. Berry was retrained as an information systems acquisitions management officer and was reassigned to Hanscom Air Force Base in Massachusetts in September, 1999.

The Becket Fund took on the legal representation of Ryan Berry in his efforts to have the black marks removed from his military record in August 1999. Air Forcregulations and the United States Constitution forbid the Air Force from punishing Lt. Berry for asking for a religious accommodation. At no time did he ever refuse an assignment. He followed Air Force procedures to the letter.

The Becket Fund filed an application for correction with the Evaluation Reports Appeal Board (the ERAB) on February 4, 2000 asking that the OPR be voided. On August 15, 2000, the ERAB ordered one change: removal of one of Col. Haeckel's false statements. The Board decided that the entry, "Had daily report altered-will not perform duties with fully qualified officers," was without basis in fact. But the Board refused to delete any of the other false statements.

Lt. Berry was promoted to Captain in June, 2000.

On November 9, 2000 The Becket Fund filed an Application for Correction of Military Records with the Air Force Board of Correction of Military Records (AFBCMR). The AFBCMR denied the application on April 18, 2001.

On August 29, 2002, a lawsuit (PDF format, 158K) was filed in U.S. District Court for the District of Columbia, asking for injunctive, declaratory and compensatory relief, and charging that the Air Force has violated Capt. Berry's freedoms of speech and religion under the U.S. Constitution and the Religious Freedom Restoration Act, as well as his privacy rights under the Privacy Act and military regulations.

In June 2003, The Becket Fund succeeded in negotiating a settlement of the lawsuit (PDF format, 18K), the terms of which give Capt. Berry everything he asked for. The Air Force and Department of Defense agreed to:

• Removal of the referral OPR [Officer Performance Report] for the period from December 30, 1997 through January 31, 1999 from Plaintiff's military records.
• In lieu of the referral OPR, insertion of a document in Plaintiff's military records stating that OPR for the period from December 30, 1997 through January 31, 1999 ws deleted for administrative purposes and its deletion is not to be considered adversely to Plaintiff.
• Removal of Col. Haeckel's referral OPR memorandum, dated April 11, 1999, from Plaintiff's military records.
• Removal of Plaintiff's response to the referral OPR, dated April 27, 1999, with attachments, from Plaintiff's military records.
• Removal of AF Form 77, dated July 30, 1999, from Plaintiff's military records.
• Removal of all documents pertaining to review by the ERAB and the AFBCMR from Plaintiff's records.
• Removal of all references to Plaintiff's alleged refusal to give his full attention and faculties to his missile alert duties from USAF and/or DOD websites.

The Air Force also agreed to pay Capt. Berry's attorney's fees. The "Stipulation of Settlement and Dismissal" was finalized with the signiture of U.S. District Court Judge Ellen Segal Huvelle on June 18, 2003.

Media Coverage:

Ex-Minot AFB Officer Settles Lawsuit (Grand Forks Herald, June 27, 2003)

The Washington Times, which did a series of articles on the Ryan Berry case in 1999, charges $1.95 per article to access stories in its on-line archives. Use the paper's search engine to locate the articles. With some exceptions, the Air Force Times allows on-line access to stories only by paid subscription.

Former missileer sues to have record cleared (Air Force Times, by Diane Tsimekles, September 9, 2002) [online version available only to subscribers]

Up in the air, junior birdmen (United Press International, Capital Comment, September 4, 2002 [3rd item])

Military women do not benefit from mixed-gender duty (National Catholic Reporter, op-ed column by Marie deYoung, October 1, 1999)

The real evil that lurks in missile silos (National Catholic Reporter, unsigned newspaper editorial, August 13, 1999)

Onward, pagan soldiers (The Washington Times, unsigned newspaper editorial, August 11, 1999)

The debate over Lt. Berry's fate continues (The Washington Times, August 10, 1999)

Airman is reassigned in dispute over women (The Washington Times, August 7, 1999)

Lieutenant wants evaluation retracted (The Washington Times, August 5, 1999)

Air Force spurns missileer's complaint (The Washington Times, July 17, 1999)

Groups back religious rights of military officer (The Washington Times, July 15, 1999)

Articles & News Items

• "Becket Fund victory: Air Force, DOD settle Capt. Ryan Berry lawsuit," August 28, 2002