Court Filing, Doc. 288 — U.S. Navy Seals 1 26 v. Biden

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Document 288 in U.S. Navy SEALs 1-26 v. Biden, Case 4:21-cv-01236-O in the U.S. District Court for the Northern District of Texas, filed July 9, 2024, is an objection to the class settlement from class member LCDR Kristi Bao, appearing pro se and dated 29 June 2024, with an enclosed 5 June 2024 request to the BCNR for a special selection board for FY23 and FY24. The objection argues that the settlement's language for the FY 25, FY 26 and FY 27 selection board convening orders repeats action the Navy already took under NAVADMIN 065/23 and does not reach the FY 22-24 boards, and asks that class members keep the ability to petition the Board of Corrections for Naval Records and to file in federal court.

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Case 4:21-cv-01236-O   Document 288   Filed 07/09/24    Page 1 of 8   PageID 8175
Kristi Bao

12307 Eugenes Prospect Drive
Bowie, MD 20720

Kristi.h.bao@gmail.com
29 June 2024
Clerk’s Officer
United States District Court for the Northern District of Texas
Fort Worth Division 4:21-cv-1236-O

501 West 10th Street, Room 310
Fort Worth, Texas 76102
ATTN: U.S. Navy. SEALS 1-26 v. Biden, Case No. 4:21-cv-0123, Objection to Class Settlement

Also delivered to:
Class Counsel:
Heather Hacker, heather@hackerstephens.com

Govt Counsel:
Andrew Carmichael, Andrew.e.carmichael@usdoj.com

Subj: OBJECTION TO CLASS SETTLEMENT | ees
Encl: Request to Board of Correction for Naval Records for Special Promotion Selection
Board (wlo enc\ asures)

1. As aclass member, and appearing pro se, I object to the fairness, reasonableness and
adequacy of this Settlement Agreement, because it will foreclose the opportunity to pursue
individual, personalized grievances against the U.S. Navy for alleged wrongs that occurred
against me which are outside the settlement’s definition of: “Adverse information related to non-
compliance with the COVID-19 Mandate means a negative notation in the Service member’s
yearly Evaluation (NAVPERS 1616/26 for E6 and below) or Fitness Report and Counseling
Record (NAVPERS 1610/2 for E7 — 06).” Specifically, | am pursuing a request for a special
promotion selection board related to my non-selection for promotion in FY23 and FY24 based
on board members knowing my religious beliefs and having knowledge of my filing for a
religious accommodation for the COVID-19 mandate. See the enclosure. Should this Settlement
be approved, I am very concerned that if the Board of Corrections for Naval Records declines
my request for relief, I will be foreclosed of pursuing relief in federal court for the perceived
wrongs that occurred against me pertaining to multiple promotion selection boards where board
members either expressed their distaste of sailors who refused the vaccine or where cognizant
that I had submitted a religious accommodation request. DoD Instruction 1320.14,
SECNAVINST 1402.1, and the applicable promotion board convening orders all make it
impermissible for promotion boards to consider an officer’s religion. The Secretary of the Navy
already denied my request, so I am now appealing to the Board of Corrections for Naval
Records, and it will likely take 12 — 18 months before I receive a decision.

a. This Settlement directs the U.S. Navy to include language in the precepts for the U.S.
Navy Fiscal Year (“FY”) 25, FY 26, and FY 27 selection board convening orders. The exact
content of the language is within the discretion of the U.S. Navy but shall provide that the boards
must not consider any adverse information related solely to COVID-19 vaccine refusal in cases
in which a religious accommodation was requested. However, as stated in NAVADMIN 065/23,
Case 4:21-cv-01236-O   Document 288   Filed 07/09/24    Page 2 of 8   PageID 8176
Subj: OBJECTION TO CLASS SETTLEMENT (LCDR BAO)

the Navy already directed the removal of any adverse information related to vaccine refusal from
official personnel records and directed convening orders for promotion boards to include
language that precludes consideration of adverse information regarding COVID-19 vaccine
refusal in the case of Service members who submitted religious accommodation requests. Thus,
this Settlement item is a wash and does not create any new restorative action or generate any
further remediation on the part of the Navy. Rather, it just gives the Department of the Navy
credit for action it already undertook unilaterally. Furthermore, by directing the corrective
language in FY25-27 boards, the action is useless in that most of the alleged wrongs committed
by commanding officers occurred in and impacted officers during the FY 22-24 boards.
Additionally, adding language to convening orders does nothing to remedy the implicit bias
directed against class members who lost career opportunities that would have enhanced their
promotion competitiveness. Affected members lost the opportunity to PCS (i.e. were stuck in the
same jobs not allowing for increased responsibilities), lost the opportunity to take orders to
operational units, lost the ability to attend training outside the narrow geographic boundaries of °
their assigned unit, lost the ability to travel for temporary duty in geographic disperse areas —
opportunities which usually lead to special recognition, were denied end of tour awards, denied
quarterly and yearly award nominations, lost special qualifications and associated pay, and the
list goes on. All these actions normally fall within the discretion of a commanding officer, but
based on an officer’s vaccine refusal and submission of a religious accommodation request,
commanding officers were directed by Navy leadership to withhold these privileges — thereby
directly impacting one’s promotion potential. It is also worth noting that rather than focusing on
an officer’s record and merit, with the inclusion of the language in promotion board convening
orders, board members are now reminded of the vaccine mandate which may bring to mind the
names of officers who submitted religious accommodation requests and thereby increase the
potential for further implicit bias against class members, despite the direction that it not be
considered. Additionally, per regulation, an officer’s religion cannot be considered by the
members of the promotion board, so there is little value in adding this language, as it will not
correct prior wrongs committed against class members. To state it differently, including
language in FY 25-27 will not fix the bias and partiality that was showed against class members
who were in or above zone for promotion in FY22 -24, when the mandate was in place and when
commanding officers were commonly, at the direction of the Secretary of the Navy and Chief of
Naval Operations, discriminating against officers who had filed for religious accommodations
and denying them career opportunities that would have enhanced their competitiveness for
promotion. Rather than adding “corrective” language, each of these officers should be
afforded a special selection board in accordance with 10 U.S.C. 628 and similar relief also
afforded to enlisted members.

2. This Settlement also does not account for the physical, emotional, mental toll the implicit and
explicit actions of the U.S. Navy took on us. Faced with the prospect of being separated before I
was retirement eligible, led to me developing a stomach ulcer and developing the unconscious
habit of clenching my teeth — necessitating the military dental clinic issuing me a mouth guard —
all from the incredible amount of stress caused by the Navy’s actions — to say nothing of the
humiliation and pain caused by having to weekly test for COVID despite not displaying any
symptoms.

3. From a class member’s perspective, this Settlement is largely useless in preventing the Navy
from engaging in similar practices in the future as the remedial actions the Navy agrees to
Case 4:21-cv-01236-O   Document 288   Filed 07/09/24    Page 3 of 8   PageID 8177
Subj: OBJECTION TO CLASS SETTLEMENT (LCDR BAO)

undertake are symbolic rather than impactful and do not address any of the adverse consequences
experienced by class members other than fitness reports and evaluations in one’s official military
personnel file. The leaders who oversaw the mandate have all been promoted and put in greater
positions of power and influence, without every receiving remedial counseling or instruction on
how the mass, standardized approach taken by the Navy neglected individualized consideration.

4. I will not be able to appear at the Fairness Hearing but wanted to make my concerns known
and ensure that class members will be able to continue to petition the Board of Corrections for
Naval Records (BCNR)concerning individualized wrongs they have experienced related to the ,
COVID-19 mandate and will be able to file in federal District Courts should BCNR deny, their

petitions.

KRISTI BAO, LCDR, USN
Case 4:21-cv-01236-O   Document 288   Filed 07/09/24    Page 4 of 8   PageID 8178
5 June 2024

From: LCDR Kristi Bao, USN, 2500
To: BCNR

Subj: REQUEST FOR A SPECIAL SELECTION BOARD FOR FY23 AND FY24

Ref: (a) SECNAVINST 1402.1
(b) FY-23 AOSS PSB Convening Order!
(c) FY-23 AOSS PSB Precept?
(d) DoDI 1320.14

Encl: (1) JAG/CNLSCINST 5400.1C SOM

(2) Email with JAGC detailer dated 31 Oct 22 - 1 Nov 22

(3) U.S. Navy SEALS 1-26 v. Joseph R. Biden, Motion to Supplement the Record
(Transcript of Admiral Lescher’s deposition) (see specifically pages 17, 34, 35, 188,
and 189)

(4) People Talks 21-47 and 22-21 (Slating Notes from VADM Crandall for FY22 and
FY23)

(5) Excerpts from “Defending the Constitution behind Enemy Lines: A Story of Hope for
Those Who Love Liberty”, published 4 Jul 23

1. Per reference (a), I respectfully request a special selection board (SSB) for FY23 and FY24 to
consider me for the rank of Commander. | was considered by the FY-23 Active Duty Staff
Corps promotion selection board, but due to the board acting contrary to law and involving a
material error of fact, | was not selected for promotion. The same errors that occurred in FY23
carried forward to FY24.

2. Pursuant to reference (b), it is impermissible for the promotion board to consider an officer’s
religion. Pursuant to reference (c), it is impermissible for board members to receive or
participate in communications or discussions involving information that DoDI 1320.14 precludes
from consideration by a promotion selection board. Reference (d) states that religion is not to be
considered by board members and board members are to be directed with instructions that state
each of them are “responsible for maintaining the integrity and independence of this promotion
selection board, and for fostering the careful consideration, without prejudice or partiality, of all
eligible officers.” As set forth below, it is my position that the member(s) of the promotion board
wrongly considered by religious beliefs when voting on my record and were thus not impartial in
the review of my record.

3. The board president for FY23 was VADM Crandall. By Navy JAGC policy, all 04s and
above, as control grade officers, are detailed by the Judge Advocate General after extensive
assignment slating meetings held in consultation with senior judge advocate leadership, who

https://www.mynavyhr.navy.mil/Portals/55/Boards/Active%20Duty%20Officer/documents/FY23_Promotion_
Board_Materials/FY23_AO5S_ PSB Convening Order.pdf?ver=NXQcib8T69vkMsul FYkj8A%3d%3d

* https://www.mynavyhr.navy.mil/Portals/55/Boards/Active%20Duty%20Officer/documents/FY23_Promotion_
Board_Materials/FY23_PSB_Precept.pdf?ver=sUIR6Y YoXtx8b0fP4A Zdrw%3d%3d

Enc | _Bao
Case 4:21-cv-01236-O   Document 288   Filed 07/09/24    Page 5 of 8   PageID 8179
Subj: REQUEST FOR A SPECIAL SELECTION BOARD FOR FY23 AND FY24

largely come from the Naval District Washington region, see enclosure (4), which is also
representative of the process in previous years. As an aside, at least five of the seven board
members were from the Washington D.C. area for the FY-23 Board.*? For FY24, there was an
overlap between prior slating meetings and promotion selection board membership for RADM
French and CAPT Cimmino.

4. The Judge Advocate General receives legal support from the Assistant Judge Advocate
General of the Navy, Civil Law (01), who in turn, oversees the Administrative Law division,
Code 13.

5. Each of these individuals and entity were instrumental in the development of Navy policy as
it pertains to religious accommodations requests following the COVID-19 vaccine mandate.
Specifically, Code 13 is assigned to staff and review all religious accommodation appeals, and
the AJAG 01, wrote a legal framework memo stating upholding a universal vaccine mandate was
supportable as a least restrictive means of protecting the force. This memo was addressed to the
Chief of Naval Operations, so it is more likely than not that the Judge Advocate General
concurred with this rationale. And given that at the time the board met, the Navy had not
approved a single religious accommodation request for vaccine exemption for a member
remaining on active-duty, it is highly probable that the Judge Advocate General adopted this
position.

6. I requested a religious accommodation on 2 September 2021. It was denied on 5 November
2021, but not delivered until 15 November 2021. I appealed on 22 November 2021, and the
appeal was denied on 5 May 2022.

7. I was originally slated to PCS in the summer of 2022, but requested an extension to remain in
place. Accordingly, my supervising attorney, notified my detailer of my vaccination status going
in to the 2022 slating season (early fall 2021) and it was then raised in discussions with the Judge
Advocate General, since I would be restricted from executing a permanent change of station or |
from being assigned to an operational command unless an exception to policy was routed and
approved by the Under Secretary of the Navy. Per enclosure (2), the Judge Advocate General
decided not to pursue a waiver on my behalf and was cognizant of my religious beliefs that led to
my decision to submit a religious accommodation request for the COVID-19 vaccine. Per
enclosure (4), membership for the 2022 slating meetings (where my vaccination status and
religious beliefs would have been discussed) included: VADM Crandall, RADM French, and
CAPT Cimmino — who later say my FY23 and FY24 promotion selection boards.

8. The JAGC is a very small community where senior officers routinely and regularly update
leadership to keep them apprised of matters that may impact an officer’s detailing. Code 13 is
also the division that oversees professional conduct for attorneys, so it is more likely than not,
that the entire Administrative Law section was aware of my status and briefed the Judge
Advocate General and JAG leadership accordingly, see enclosure (1). I recognize that I have
limited evidence to support my position, but a review of JAGC organization charts and
knowledge of how a small Navy Staff Corps community operates should carry considerable
weight. Furthermore, in making casual inquiries, | am not aware of any other active-duty judge

3 Specifically, VADM Crandall, CAPT Gonzalez, CAPT Wong, CAPT Josephson, and CAPT Stephens

fer _ BAo
Case 4:21-cv-01236-O   Document 288   Filed 07/09/24    Page 6 of 8   PageID 8180
Subj: REQUEST FOR A SPECIAL SELECTION BOARD FOR FY23 AND FY24

advocate opting out of the vaccine mandate — which would make my situation very unique and
worthy of being briefed to Flag leadership, especially as I was filling an operational billet at the
time the mandate was implemented. In lieu of submitting FOIA and Privacy Act requests for
emails and records that may substantiate my position, | am attaching enclosure (2), which affirms
that VADM Crandall, as a JAGC Flag officer, was aware of my religious beliefs as evidenced by
my filing of a vaccine religious accommodation request.

9. Concerning the FY24, promotion selection board, similar concerns existed about the selection
board membership, as RADM French and CAPT Cimmino were in attendance during
detailing/slating discussions where they would have had knowledge about my religious beliefs.

10. On July 4, 2023, enclosure (5) was published that contains relevant information as to my
claim that board member(s) wrongly considered my religious beliefs when voting on my record
at a minimum on the FY-23 Active Duty Staff Corps promotion selection board. Specifically,
VADM Crandall is quoted as saying, “I probably shouldn’t mention this. I hope no one is
recording.” And then, according to the author, “launched into a celebration of the recent
Supreme Court decision which allowed the Navy to basically reduce their own readiness by
declaring unvaccinated service members to be non-deployable. Admiral Crandall bragged about
the exceptional support JAG lawyers had provided to Department of Justice attorneys in
defending vaccine mandates and getting the Supreme Court to validate the Navy’s position that
Judges should ‘stay out’ of military decision making. He then proceeded to denigrate a Navy
Destroyer commanding officer who had ‘sidelined a billion dollar warship’ because he refused to
follow the mandate. Admiral Crandall publicly ridiculed the Destroyer CO to the room full of
lawyers for jeopardizing his own life, the lives of his crew, and the national security for personal
reasons — refusing the ‘safe and effective’ vaccine.” Arguably, if this was the sentiment he
displayed to an officer outside of his community, it is more likely than not that he shared the
same sentiment towards me, a fellow judge advocate. The speech in question occurred during
the Navy Reserve Law Program Military Law Training Symposium (East) in March 2022, prior
to the convening of the FY-23 promotion selection board in May 2022. Thus, it is relevant as it
informs the mind-set of the Board President and how he viewed Sailor’s religious beliefs as the
U.S. Supreme Court decision in question pertained to service member’s seeking
accommodations based on their religious beliefs. Based on the comments made by the Board
President in March 2022, there is a preponderance of evidence to suggest that he should have
recused himself from reviewing promotion records of officers whom he knew had sought
religious accommodation requests, since he clearly had a bias against members seeking religious
accommodations and he knew | was seeking one. The same could also be said towards CAPT
Josephson, another member of the FY23 selection board, as she was legal advisor to the VCNO,
and again, per enclosures (3) and (5), had helped draft Admiral Lescher’s court declaration
which opposed making accommodations for religious beliefs, and given her position and
seniority, more likely than not, knew of my religious beliefs.

11. Ata minimum, at least one member of the promotion selection board knew of my religious
beliefs, and possessed that information during the promotion selection board, that according to
DoDI 1320.14 and references (b) and (c), was unlawful for them to have received and/or
possessed. Upon review of my official military record, there was no mention of my religious
beliefs or status. Thus, it is only due to the process by which CNP and the JAGC decided to
establish the board membership, that my religious status and beliefs were made known to

Enc “BAS
Case 4:21-cv-01236-O   Document 288   Filed 07/09/24    Page 7 of 8   PageID 8181
Subj: REQUEST FOR A SPECIAL SELECTION BOARD FOR FY23 AND FY24

member(s) of the board, and | was thus deprived of a fair and impartial consideration by the
board. Upon reviewing the extensive vaccination status reporting requirements (which for the
sake of brevity, I do not reiterate here), the broad permissions granted to view Chief of Naval
Personnel and OPNAV vaccine sharepoint trackers, and religious accommodation packages in
DON Tracker, and that I was not allowed to be assigned to an operational billet given my
vaccination status for the FY23/24 slating cycles, there is more than a preponderance of evidence
to support that judge advocate members on the two promotion selection boards had access to
trackers and reports and knew of my religious beliefs, thereby holding it against me contrary to
law and policy. Due to the board membership containing individuals who were in key policy
decisions related to the vaccine mandate and who had access to individual records of officers
who submitted religious accommodation requests, including mine, there is a material unfairness
that these same senior officers were selected to sit the promotion selection board and utilize,
knowledge of my religious beliefs when voting on my record.

12. While I fully anticipate that the board members will assert that they performed their duties
without prejudice or partiality and complied with the terms of the oath they swore to, from an
objective equity and fairness perspective, there is more than a preponderance of the evidence that .
the board member(s) knew of my religious beliefs prior to sitting the board and possessed that —
information despite me not disclosing it to the promotion selection board. In accordance with
SECNAVINST 1401.3B, selection board members are expected to recognize that certain
relationships may affect the perceived integrity of the board. In such cases, the board member
must advise the board sponsor of the relationship and take such action as will protect the

integrity of the board process, up to and including requesting relief from board duties. As has
come out in pending litigation, CAPT Josephson, personally advised the VCNO on his sworn
deposition in favor of the government’s position to uphold the vaccine mandate and not
accommodate religious accommodation requests. As set forth in enclosure (3), at a minimum,
CAPT Josephson & VADM Crandall’s were involved in providing advice to VCNO on COVID
policy. Thus, VADM Crandall and CAPT Josephson should have declined sitting on the
promotion selection board given their integral involvement in the reviewing and staffing of Navy
policy as it relates to religious accommodation requests and VADM Crandall’s specific,
individualized knowledge of my religious beliefs. Similarly, for the FY-24 Board, both RADM
French and CAPT Cimino were in attendance during detailing/slating meetings where my

vaccine status and religious beliefs were more than likely discussed as it made me ineligible for
operational billets.

13. Therefore, in order to correct a material and legal error, as well as injustice, and due to
fundamental fairness, I respectfully request a special selection board comprised of members that
were outside the purview of processing religious accommodation requests.
14. If you require additional information concerning my request, I can be reached at phone: 650-
346-2049 or by email: kristi.h.bao@gmail.com.

Very respectfully,

K. BAO

Euck “Bao
Case 4:21-cv-01236-O   Document 288   Filed 07/09/24    Page 8 of 8   PageID 8182
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