A former instructor who was denied re-enlistment in 2011 is suing the Defense Department to return to active duty and keep the beard he says led to the end of his nine-year Navy career.
Attorneys for reserve Boatswain's Mate 2nd Class (SW/AW) Jonathan Berts filed a federal court brief in Sacramento, California, on Dec. 22, in hopes the Navy would allow him to re-enlist under DoD's new grooming regulations, which allow waivers for religious facial hair and head coverings.
Berts, 31, joined the Navy in 2002, he told Navy Times, with a no-shave waiver because of ingrown hairs. By 2006, his skin had cleared up, but five years later, he requested another waiver to grow a beard because of his Islamic religious beliefs.
He had practiced Islam throughout his Navy career, Berts said in a Jan. 7 phone interview, but had become more observant by early 2011.
"I celebrated Islamic holidays, I fasted during holidays, I prayed," he said. "I started to get a deeper sense of faith and started to try to live my religion a bit more."
In January 2014, the Pentagon relaxed its rules to allow waivers for short, well-groomed beards and head coverings for service members whose religious tenets dictate their wear.
The new instruction updated the rules to include religiously based grooming and body art under its definition of religious apparel, such as jewelry, which was previously allowed. Service members must apply for a waiver, to be updated with each change of duty station, but conservative, well-groomed beards are covered.
A spokesman for the chief of naval personnel told Navy Times he couldn't comment on the specific case, but that the Navy makes all accommodations possible to allow sailors to practice their religions while maintaining unit cohesion and keeping the mission-first priority.
"But this is never simple; it requires seasoned leaders at all levels to use their best professional judgment as they look at all of the factors in each particular case," Cmdr. Chris Servello said.
'Making noise'
Back In 2011, when Berts applied for a religious waiver, he was denied. He said he had the support of his leading petty officer and chief petty officers, as well as Christian and Muslim chaplains at Naval Training Support Center Great Lakes, Illinois.
He also knew that the Army and Air Force had allowed religious waivers, so he felt he had a decent chance.
The chit was denied, but his problems came later. Berts, a military history and physical education teacher at the time, filed an appeal.
Soon after, he said, he was reassigned to guard an empty, cockroach-infescted barracks at Great Lakes. He felt it was a punishment for continuing his fight.
"There was a lot of questioning of my loyalty, I got some names called. It was pretty bad," Berts recalled. "I don't know what their interpretation was, but I was told directly that I was making 'noise.' "
His service obligation was up in early 2012, so at the time he was waiting for his appeal, his leadership was writing up his evaluation, Berts said.
Despite stellar past evaluations, according to the lawsuit, Berts was not selected for re-enlistment. His personnel records include two Navy Achievement Medals and three Good Conduct Medals.
Berts received an honorable discharge and transferred to the Navy Reserves in January 2012, serving in Glenview, Illinois, for a year before moving home to Northern California, where he's now assigned to Navy Cargo Handling Battalion 14 out of Port HuenemeTHIS IS SOCAL SO DELETED NORTHERN/SF.
All the while, he's kept his beard as a member of the Individual Ready Reserve, Berts said. And he's tried numerous times to re-enlist, visiting recruiters in Fairfield, California, and San Francisco.
"People will occasionally ask why I have a beard and I just tell them, for my religion," he said.
Recruiters have given him several reasons why he can't return to active duty, he said, including his discharge code, which notes that he was ineligible for re-enlistment.
Berts said that he tried legal recourse through his Equal Opportunity Office while he was still in, but got nowhere. He also requested an open captain's mast to quash the issue, but "it was always derailed at the senior leadership level," he said.
With some sort of action in mind, He began working with civilian attorney Alan J. Reinach, a religious liberty attorney with the Church State Council in California, in 2013.
When DoD updated its grooming instruction last January, the gears started turning.
Reinach and Berts teamed up with attorney Brice Hamack of the CouncilCounsel on American-Islamic Relations, and together they filed a lawsuit against Navy Secretary Ray Mabus, Defense Secretary Chuck Hagel, and former NTSC TSC Great Lakes commanding officer Capt. Peter Lintner.
Berts is asking to return to active duty, with his time-in-service updated as if he'd never left.
"I believe that I was wronged, and I would love to get my career back," he said.
He said he's not concerned about any negative treatment if he did end up back on active duty, with a reputation trailing him. Before reporting to Great Lakes, Berts served aboard the dock landing ship Fort McHenry and at Beachmaster Unit 1 in Coronado, California.CAN WE INCLUDE ANY COMMANDS HE SERVED AT?
"I don't think I would take any more crap, because people are aware," he said. "I'm not afraid. I've been called a lot of bad things."
Beyond getting back on active duty, Berts said he hopes his case might result in some training for senior leadership. His lawyer agreed.
"One of our goals, and why our organization brings these cases, is because we hope to get the attention of management not to do this sort of thing again and to take remedial steps to not let this happen again," Reinach said.
Meghann Myers is the Pentagon bureau chief at Military Times. She covers operations, policy, personnel, leadership and other issues affecting service members.
